Texas-Book-Gun Law Armed And Educated - Flipbook - Page 407
What is “gross negligence,” and how is it different than “regular”
negligence? Many gun cases will include a claim for gross
negligence by the plaintiff. The primary reason for this is that
if a plaintiff establishes gross negligence by a defendant, the
plaintiff may be entitled to additional types of damages or amounts
of money that are legally not available if mere negligence is
established. Texas Civil Practice and Remedies Code Section
41.001(11) defines gross negligence as follows:
“GROSS NEGLIGENCE” MEANS AN ACT OR OMISSION:
(A) which when viewed objectively from the standpoint of the
actor at the time of its occurrence involves an extreme degree
of risk, considering the probability and magnitude of the
potential harm to others; and
(B) of which the actor has actual, subjective awareness of the
risk involved, but nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of the others.
The defendant’s state of mind is also a key difference between
negligence and gross negligence. Negligence involves an objective
standard—how would a reasonable person have acted? Gross
negligence applies a subjective component—was this particular
person actually aware of the risk involved?
EXAMPLE:
Caitlyn has practiced shooting at a private range on her country
property for 20 years, without incident. She shoots toward an
area where she has never seen another person, and she believes
the range of her guns cannot reach her property line. One day, a
neighbor is hit by a shot as he is strolling through the woods just
off of Caitlyn’s property.
396 | CHAPTER SIXTEEN
