​Wrongful Death—Gross Negligence—Risk Analysis

Wrongful Death—Gross Negligence—Risk Analysis—Goodyear Tire & Rubber Company v. Rogers, ___ S.W.3d ___, 2017 WL 3776837 (Tex. App.—Dallas 2017)—The Workers’ Compensation Act preserves the right of a deceased employee’s survivors to sue for wrongful death caused by an employer’s gross negligence. Tex. Lab. Code 408.001(b). This case outlines the standards and means of proof of gross negligence, and it upholds a jury’s verdict finding the employer grossly negligent in exposing an employee to asbestos long after the employer became aware of the extreme risk of asbestos. The employer argued that the employee’s risk of developing mesothelioma under the circumstances was only one in about 45,000, and that this probability should be deemed not an extreme risk as a matter of law. However, the court held that “statistical evidence of the probability of serious injury is not necessary to establish the objective component of gross negligence.” In any event, there was also evidence that the probability was much higher. Moreover, the court held, likelihood of injury is not the only factor in a test of extreme risk. A jury is also entitled to consider the defendant’s acts and omissions creating an extreme degree of risk. In this case 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.