Texas Supreme Court Confirms Probability of Harm as Necessary Element of Extreme Degree of Risk in Gross Negligence CasesMay 3, 2019 – Article
On April 26, 2019, the Supreme Court of Texas issued an opinion in the case of Medina v. Zuniga, 2019 Tex. LEXIS 387 (Tex. April 26, 2019), examining the sufficiency of evidence supporting the objective prong of the gross negligence test. The opinion is significant for defendants in asbestos litigation, because it signals the Court’s continued willingness to consider numeric probability of harm evidence when determining whether an act or omission involves an extreme degree of risk.
In Medina, a teenage driver challenged a jury’s finding of gross negligence arguing that the evidence did not establish that his actions involved an extreme degree of risk. 2019 Tex. LEXIS 387, at *3. At trial, the evidence showed that Medina struck a pedestrian while speeding out of his high school parking lot on a Sunday. Id. at *4. According to his merits brief, Medina testified that he expected to see as many as 126 students in the parking lot during the week. However, because it was Sunday, video surveillance showed only two students in his field of view before he hit the pedestrian. Id. at *22-23. The Fourth Court of Appeals upheld the jury’s verdict without considering the probability of harm given the number of students present at the time of the accident. Zuniga v. Medina, 565 S.W.3d 61, 64-65 (Tex. App.—San Antonio 2017).
Justice Jeff Brown, writing for the Supreme Court of Texas, reversed the court of appeals’ opinion and rendered judgment that the plaintiff take nothing. Justice Brown reasoned that “[g]ross negligence can be supported only by an extreme degree of risk, not ‘a remote possibility of injury or even a high probability of minor harm[.]’” Medina, 2019 Tex. LEXIS 387, at *22 (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). The two pedestrians in Medina’s line of sight at the time of the accident were “a far cry from the crowds of students one might expect to see on a typical day.” Id. at *23. “[W]hile pedestrian traffic was not negligible, we also cannot conclude that driving through the parking lot at unsafe speeds on the day and time in question, while certainly risky, would pose an extreme risk as contemplated by the objective component of gross negligence.” Id. at *23-24.
Goodyear Tire & Rubber has asked the Supreme Court of Texas to consider the necessity of probability evidence when evaluating extreme degree of risk under the objective gross negligence prong in its appeal from the Fifth Court of Appeals opinion in Goodyear Tire & Rubber Co. v. Rogers, 538 S.W.3d 637 (Tex. App.—Dallas, pet. filed). In Rogers, an asbestos wrongful death case, the Fifth Court of Appeals cited the now-reversed Medina opinion to support the assertion that “statistical evidence of the probability of serious harm is not necessary to establish the objective component of gross negligence.” Id.at 645 (emphasis added). When evaluating whether Goodyear’s use of asbestos-containing materials constituted an extreme degree of risk, the Fifth Court of Appeals refused to consider Goodyear’s calculation that decedent’s dose of asbestos exposure gave him only a one in 45,000 or 0.002% chance of developing mesothelioma. Goodyear made this calculation using data supplied by plaintiff’s own expert, Edwin Holstein. Instead of probability of harm, the court of appeals considered only Goodyear’s alleged bad acts and the fact that mesothelioma is a fatal disease, i.e., the magnitude of harm.
Goodyear’s assertion that the court of appeals erred in not considering its probability of harm evidence will likely find support in the Texas Supreme Court’s recent Medina opinion. By opining that speedy driving in a parking lot with two instead of 126 pedestrians did not rise to an extreme degree of risk, Medina makes clear that probability is a required element of extreme degree of risk. Were it not, there is no distinction between ordinary negligence and gross negligence. Whether the Court will determine that a one in 45,000 chance of developing mesothelioma is a possibility too remote to meet the high threshold for extreme degree of risk remains to be seen. Briefing on the merits has been submitted in Rogers, but the Supreme Court has not yet granted oral argument.
The Supreme Court of Texas’ opinion in Medina v. Zuniga can be viewed here.
The Fifth Court of Appeals’ opinion in Goodyear Tire & Rubber Co. v. Rogers can be viewed here.