Establishing Gross Negligence Claims In Texas

Negligence claims in Texas relate to some breach or failure of a person or entity such as business to perform its legal duty. We know these claims to typically be negligent actions in tort. Good examples are negligent driving by a drive in an auto accident case, or failure of a store facility to keep the premises safe. There are variations of negligence claims.

General 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).

Gross Negligence

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

Duty is the threshold inquiry in a negligence claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The threshold question or 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).

Standard of Review

The existence of a legal duty is a question of law for the court to decide from the particular facts surrounding the occurrence in question. Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 572 (Tex. 2005). Because the existence of a legal duty is a pure question of law, the standard of revie is a de novo standard of review. Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722, 727 (Tex. App.-El Paso 2004), rev'd on other grounds, 210 S.W.3d 593 (Tex. 2006) (citing El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999)).

Applicable Law

To determine whether a defendant is under a legal duty, Texas courts consider several interrelated factors, including the risk, foreseeability, and likelihood of injury, weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Of these factors, the foremost consideration is whether the risk is foreseeable. Greater Houston Transp. Co., 801 S.W.2d at 525. Foreseeability means that an actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Isbell v. Ryan, 983 S.W.2d 335, 339 (Tex. App.-Houston [14th Dist.] 1998, no pet.). In other words, “there is neither a legal nor a moral obligation to guard against that which cannot be foreseen in the light of common or ordinary experience.” J.R. Beadel & Co. v. De La Garza, 690 S.W.2d 71, 73 (Tex. App.-Dallas 1985, writ ref'd n.r.e.) (quoting Hadaway v. Lone Star Gas Co., 355 S.W.2d 590, 592 (Tex. Civ. App.-Fort Worth 1962, no writ)). Foreseeability is not measured by hindsight, but instead by what the actor knew or should have known at the time of the alleged negligence. Timberwalk Apts. v. Cain, 972 S.W.2d 749, 757 (Tex. 1998).

The Texas Supreme Court uses a two-prong test for foreseeability:

(i) that the injury be of such a general character as might reasonably have been anticipated; and (ii) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated might reasonably have been foreseen. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality opinion) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 551, (Tex. 1985)).

What is Reasonable Attorney's Fees in Texas?

On occasion a client may wonder if the attorney's fees charged on his or her case is reasonable or justified. Attorney's fees can be a source of litigation in and of itself especially when it comes to protracted litigation, complex cases, or cases that become contentious or hotly contested.

When reviewing the reasonableness and justification of attorney's fees, Texas courts look to the following factors:

1. The time and labor required

2. The novelty and difficulty of the questions involved

3. The skill required to perform the legal service properly

4. The likelihood that the acceptance of the particular employment will preclude other

employment

5. The fee customarily charged in the locality for similar legal services

6. The amount involved and the results obtained

7. The time limitations imposed by the client or by the circumstances

8. The nature and length of the professional relationship with the client

9. The experience, reputation, and ability of the lawyer or lawyers performing the services; and

10. Whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). It is not necessary, however, that the record include evidence on each of these factors. See Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889, 897-98 (Tex. App.-Dallas 2003, no pet.). Generally, the nature and extent of the attorney's services are expressed by the number of hours and the hourly rate. Id. However, there is no rigid requirement that these facts must be introduced into evidence to support a finding that attorney's fees are necessary and reasonable. Id; Hays & Martin, L.L.P. v. Ubinas-Brache, M.D., 192 S.W.3d 631,636 (Tex. App.-Dallas 2006, pet. denied). In Hays & Martin, the court's holding affirmed an award of attorney's fees where the evidence did not include evidence of the number of hours spent working on the case. Hays & Martin L.L.P., 192 S.W.3d at 637. The attorney testified as to his hourly rate and that of another partner who worked on the case. He testified that the case was procedurally complicated and specified some of the work involved including numerous discovery motions, responses to jurisdictional motions, and a continuance. Id.

Of particular note is the factor of the likelihood of preclusion from other work. Most clients sometimes put pressure on his or her attorney or lawyer to finish or conclude a case. The reality in most lawyer's practices is that the attorney is sometimes faced with a heavy docket of cases. Taking a case sometimes precludes a lawyer from working on other cases or taking on any new cases. The fact that the attorney takes on a case, means that the lawyer is banking on getting compensated. Texas jurisprudence recognizes this practical aspect of a lawyer's practice and therefore considers this factor in determining the reasonableness and necessity of attorney's fees in Texas.