Allegations of malice/gross negligence by a plaintiff can substantially affect the handling of a claim. The allegation may damage the defense of a general negligence case, compel the defendant to produce private net-worth information, and substantially add to the value of a case. Seriously consider filing a no-evidence motion for summary judgment to dispose of the malice/gross negligence allegation. It may simplify the issues in the case.

The Texas No-Evidence Summary Judgment Rule

Effective as to cases pending on September 1, 1997, the Texas Supreme Court amended Texas Rule of Civil Procedure 166a to provide for a no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a notes & cmts. The amendment adds a new sub-section (i) to Rule 166a and provides for the filing of a no-evidence motion for summary judgment after adequate time for discovery has passed:

[A] party, without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i) (emphasis added).

No-Evidence Motions for Summary Judgment in Federal Court

In 1986, the United States Supreme Court approved the award of no-evidence summary judgments in federal court. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Under the federal standard, as well as the new Texas standard, if the issue is one on which the movant does not bear the burden of proof, and an adequate time for discovery has passed, summary judgment is mandated if the respondent fails to make a showing sufficient to establish the existence of each element essential to its cause of action. See id. at 322-23.

The facts in Celotex illustrate the application of the standard of proof for a no-evidence summary judgment motion. In Celotex, a widow sued an asbestos manufacturer for the asbestos-related death of her husband. See id. at 319. Celotex Corporation moved for summary judgment based on the widow’s failure to produce any evidence that her husband had been exposed to its products. See id. at 319-20. The widow’s response was based on three documents that were arguably comprised of inadmissible hearsay. See id. at 320. The trial court found that summary judgment was mandated because of the widow’s failure, after adequate time for discovery, to present evidence of matters on which she had the burden of proof. See id. A federal appellate court reversed the trial court, but the United States Supreme Court upheld the trial court’s ruling, holding that it was not Celotex’s burden to negate such issues. See id. at 327-28.

While Celotex marked a shift in the burden of proof in federal summary judgment practice, two other 1986 Supreme Court decisions further clarified the burden of proof imposed upon a party moving for summary judgment: Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In sum, these cases held that simply showing the existence of a fact issue will not suffice to defeat a no-evidence summary judgment motion; there must be a "genuine issue" regarding a "material fact." See Matsushita, 475 U.S. at 585-87; Anderson, 477 U.S. at 255-57.

The Requirement That There Be No Genuine Issue of Material Fact

As does the federal rule, the Texas no-evidence summary judgment rule requires that there be no "genuine issue" of "material fact." Compare Fed. R. Civ. P. 56(c), with Tex. R. Civ. P. 166a(1). In Anderson, the United States Supreme Court elaborated on the amount of evidence required in federal court to present a genuine issue, and thus avoid summary judgment. See Anderson, 477 U.S. at 254-55. In evaluating the evidence presented by the respondent, the judge must view that evidence "through the prism of the substantive evidentiary burden." Id. at 254. The Supreme Court further noted that a motion for summary judgment serves the same function as a motion for directed verdict at trial, and that the inquiry under each is identical: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

The Anderson Court also discussed the requirement of "materiality," explaining that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Accordingly, a court must analyze the substantive law to determine which facts are material. A complete lack of proof concerning an essential element of the respondent’s case necessarily renders all other facts immaterial; therefore, there can be no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322-23.

The Requirement That There Be Adequate Time for Discovery

Federal practice also gives guidance on what is meant by "adequate time for discovery." In Celotex, the summary judgment was filed one year after the lawsuit commenced. See id. at 319. The Federal Fifth Circuit has found that as little as nine months from the time that the action was filed may constitute sufficient time for discovery. See Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir. 1995).

A No-Evidence Motion for Summary Judgment on the Issues of Malice/Gross Negligence and Exemplary Damages

According to Texas law, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) "fraud," (2) "malice," or (3) a "willful act or omission or gross neglect in [a] wrongful death action[]." Tex. Civ. Prac. & Rem. Code § 41.003(a) (Vernon 1997). "Malice" refers to the following:

1. a specific intent by the defendant to cause substantial injury to the claimant; or

an act or omission:

1. which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree or risk, considering the probability and magnitude of the potential harm to others; and

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 others.

Id. § 41.001(7)(A)-(B). The Texas Supreme Court recently reiterated this standard in the malice/gross negligence context. See Louisiana-Pacific Corp. v. Andrade, 43 Tex. Sup. Ct. J. 56, 57, 1999 WL 959160 (Oct. 21, 1999) (citing Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994)). The Andrade Court distinguished malice/gross negligence from ordinary negligence as follows: "[T]he plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care." Id. "Evidence of simple negligence alone is not sufficient to establish gross negligence." Id. at 58.

Many allegations of malice/gross negligence cannot be substantiated by evidence. Even if such evidence exists, it may be countered with exonerating evidence, depending on the circumstances. A no-evidence motion for summary judgment is a powerful tool for eliminating baseless claims of malice/gross negligence. For this reason, one should seriously consider the facts of a case to determine if such a motion is warranted.

After adequate time for discovery, which may be as little as nine months or less after suit has been filed, a defendant may file a no-evidence motion for summary judgment. Some of the benefits of such a motion may include the following: