Texas, like most states, adopted the worker’s compensation scheme decades ago. Worker’s compensation essentially provides coverage for workers for on-the-job injuries. In return for workers compensation, workers give up the right to sue for simple negligence. But, worker’s compensation does not apply to gross negligence if death results. Gross negligence is worse than simple negligence. Gross negligence involves an employer proceeding with a known risk. It requires the employer to have some knowledge and awareness of the dangerous condition. To show gross negligence, a plaintiff must prove by clear and convincing evidence that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

In Goodyear Tire & Rubber Co. v. Rogers, 2017 WL 3776837 (Tex.App. Dallas 8/31/2017), the court addressed the question whether the presence of asbestos was known to the employer. The jury found the asbestos was an extreme risk known to the employer. The jury fund the employer grossly negligent in exposing its workers to asbestos. Carl Rogers, who worked at the Goodyear plant from 1994 to 2004 contracted mesothelioma, from which he died in 2008 at the age of 60. Goodyear argued that the probability of developing mesothelioma under these circumstances was only 1 in 45,000. The employer agreed that that low probability was too remote to qualify as gross negligence. The court disagreed. The court found that statistical evidence of  serious injury is not necessary to show the objective element of gross negligence. In any event, added the court, there was some evidence that the probability was much higher.

Too, the jury need not consider only the probability. It can also consider the employer’s acts and omissions. In this case, there was evidence that the employer turned a “blind eye” to the risk of mesothelioma and the magnitude of  the risk was great because mesothelioma leads to certain death. See the decision here.