How to Prove ''Gross Negligence'' In Texas ?

In Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994), the Texas Supreme Court formulated a two-pronged test for establishing gross negligence. First, the defendant's act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Second, the defendant must have actual subjective awareness of the risk involved but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Moriel, 879 S.W.2d at 22. Only if the act or omission is unjustifiable and likely to cause serious harm can it be grossly negligent. Id. It is the subjective conscious indifference which distinguishes gross negligence from ordinary negligence. Uniroyal Goodrich Tire Co. v. Martinez, 928 S.W.2d 64, 71 (Tex.App.--San Antonio 1995), aff'd, 977 S.W.2d 328 (Tex. 1998). Where exemplary damages are sought against a corporate entity, there must be a showing that someone employed in a managerial capacity and acting in the scope of that managerial capacity was grossly negligent. Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 732-33 (Tex.App.--Texarkana 1996, no writ), citing King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, 405 (1950).