law-negligence | gross negligence
The elements of a negligence cause of action are a legal duty, a breach of that duty, and
damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454
NEGLIGENCE CASELAW SNIPPETS
Negligence arises when an actor breaches a legal duty in tort, and the breach proximately causes
damages. IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); D. Houston, Inc.
v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
The elements of negligence are: (1) a duty; (2) breach of that duty; and (3) damages proximately
caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam); Paragon
Gen. Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 887 (Tex. App.-Dallas 2007, no pet.).
A claim of negligence requires that there is a legal duty owed to another, a breach of that duty and
damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
Ordinary negligence is elevated to gross negligence by "the mental attitude of the defendant." Burk
Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981). A finding of gross negligence necessitates a
finding of ordinary negligence. Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.-Houston
[14th Dist.] 1994, writ denied).
Under the express negligence doctrine, a party seeking indemnity for the consequences of its own
negligence must express that intent in specific terms within the four corners of the contract. Ethyl Corp.
v. Daniel Const. Co., 725 S.W.2d 705, 707-08 (Tex.1987); U.S. Rentals, Inc. v. Mundy Serv. Corp., 901
S.W.2d 789, 791 (Tex. App.-Houston [14th Dist.] 1995, writ denied). The test is whether the parties
made it clear that their intent is to exculpate a party for its own negligence. See Atlantic Richfield Co. v.
Petroleum Pers., Inc. 768 S.W.2d 724, 726 (Tex. 1989).
Elements of Negligence and Gross Negligence
To establish a claim for negligence, a plaintiff must prove (i) the existence of a legal duty, (ii) a breach of
that duty, and (iii) damages proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793,
794 (Tex. 2006). To establish gross negligence, a plaintiff must also prove by clear and convincing
evidence two additional elements: (i) that from the actor's standpoint, the act or omission complained of
involved an extreme degree of risk, considering the probability and magnitude of the potential harm to
others, and (ii) that the actor had actual subjective awareness of the risk involved but nevertheless
proceeded in conscious indifference of the rights and safety or welfare of others. Tex. Civ. Prac. & Rem.
Code Ann. § 41.003(a)(3) (Vernon 2005); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.
2001). Duty is the threshold inquiry in a negligence claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d
195, 197 (Tex. 1995) (“The threshold inquiry in a negligence case is whether the defendant owes a
legal duty to the plaintiff.”). If there is no legal duty, liability for negligence cannot exist. See Thapar v.
Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).
BARBARA BEHRINGER, ET AL. v. ALCOA INC., (SUED INDIVIDUALLY AND AS SUCCESSOR-IN-
INTEREST TO REYNOLDS METAL COMPANY); from Dallas County; 5th district (05-06-00136-CV, 235
SW3d 456, 10‑11‑07, pet denied Nov 2008) (litigation involving asbestos exposure, multi-million award
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