concurring in part and dissenting in part.
I concur in the majority’s opinion, with the exception of its holding that the release signed by Mrs. Newman waived Tropical Visions’ liability for gross negligence as well as ordinary negligence. I would hold under existing Texas case law and as a matter of public policy that gross negligence cannot be waived. Furthermore, Appellees have failed to sustain them summary judgment burden as to gross negligence. We should therefore uphold Appellants’ seventh point of error and remand Appellants’ claim to the trial court for a determination on the issue of gross negligence.
CAN GROSS NEGLIGENCE BE WAIVED?
The only case in Texas that has thus far addressed the issue of whether an express release can relieve a defendant from liability for damages occasioned by its own gross negligence unequivocally held that such a release is void as against public policy. In Smith v. Golden Triangle Raceway, 708 S.W.2d 574 (Tex.App.—Beaumont 1986, no writ), the plaintiff attended a motorcar race and signed a waiver to gain access to the infield. He was injured while in the “pit area” and filed suit on claims of both negligence and gross negligence. The waiver that he signed released the track owners and operators “from all liability to the undersigned ... for any and all claims or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise.... I HAVE READ THIS DOCUMENT. I UNDERSTAND IT IS A RELEASE OF ALL CLAIMS.” Id. at 575 (emphasis added). The raceway filed a motion for summary judgment based on the release signed by Mr. Smith, which was granted by the trial court. The court of appeals acknowledged that this was a case of first impression in Texas and cited several other jurisdictions that have adopted the rule that liability for gross negligence cannot be waived. The court concluded that public policy barred a waiver under such circumstances and cited section 195 of the Restatement (Second) of Contracts, which states: “A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” Restatement (Second) of Contracts § 195 (1979). The court then remanded for a trial solely on the issue of gross negligence and the actual and punitive damages attributable to that gross negligence. Id. at 576.
Smith is directly on point. The release signed by Mrs. Newman was similar to that signed by Smith; in fact, Smith released “all claims,” whether caused by “negligence or otherwise.” The release signed by Mrs. Newman specifically released only “negligence.” This court should follow Smith and hold that the release signed by Mrs. Newman did not waive gross negligence.
GROSS NEGLIGENCE V. SIMPLE NEGLIGENCE
a. Are gross negligence and simple negligence separable issues?
The majority strains to find that the release signed by Mrs. Newman waived gross negligence as well as ordinary negligence. It does this by determining that gross negligence and negligence are not two different causes of action but, rather, “a difference of degree rather than kind.” To arrive at this result, the majority dismisses Smith because it “seems to go much further, suggesting that *724gross negligence and ordinary negligence are two different causes of action.” Supra at 16 (emphasis added). In fact, the Fourteenth Court of Appeals in Houston has flatly stated: “[W]e believe negligence and gross negligence to constitute two separable catises of action as gross negligence requires proof of the mental attitude of the defendant and ordinary negligence does not and the means by which damages are assessed for each action is different.” Olin Corp. v. Dyson, 678 S.W.2d 650, 659 (Tex.App.—Houston [14th Dist.] 1984), rev’d on other grounds, 692 S.W.2d 456 (Tex.1985). The Austin Court of Appeals in Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946 (Tex.App.—Austin 1990, writ denied), while disagreeing with Dyson that negligence and gross negligence form two separate causes of action, agreed that “gross negligence may be tried and determined separately from negligence, as in actions brought under the worker’s compensation statute.... It may also be a separable issue which properly may be determined upon limited remand of a proceeding." Id. at 950. (emphasis added). This court has acknowledged the split in authority as to whether gross negligence and simple negligence are separate causes of action. See Metromedia Long Distance, Inc. v. Hughes, 810 S.W.2d 494, 497 n. 10 (Tex. App.—San Antonio, 1991, writ denied).
While the Texas Supreme Court has yet to address directly the issue of whether an action for gross negligence such as that sought in the instant case may be determined separately from an action for negligence in a non-worker’s-compensation case, its recent decision in Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994), is instructive. The court in Moriel declared that its decision “represents a substantial clarification of the gross negligence standard that will apply in all cases[.]” Id. at 13. After tracing the history of gross negligence in Texas jurisprudence, the court underscored that the Texas standard differs from most jurisdictions by requiring two elements: an objectively viewed act or omission and the actual, subjective awareness of the actor.
It should not be surprising, perhaps, that many efforts to analyze gross negligence findings confuse the defendant’s mental state with the nature of the defendant’s act or omission. The mental state involves awareness of the risk, and thus the two are interrelated. As Prosser and Keeton point out, most jurisdictions distinguishing gross from ordinary negligence have focused on either the difference in the defendant’s mental state or the difference in riskiness of the defendant’s act, but the two definitions have tended to merge and “take cm the same meaning, of an aggravated form of negligence....” But this is not so in Texas. Ours is a “hybrid definition, distinctive to this state ... combining both of the traditional tests for gross negligence."
Id. at 22 (emphasis added) (citations omitted).
The court concluded that the definition of gross negligence includes two elements:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
Id. at 23.
From the above passages, it is certain that in Texas gross negligence is more than merely “an aggravated form of negligence,” and is sufficiently distinct and separable from simple negligence as to demand a separate determination.
b. Actual and exemplary damages
The majority emphasizes that Texas case law is clear that one cannot recover exemplary damages until he or she proves an entitlement to actual damages, and that the determination of gross negligence is therefore relevant only to an assessment of exemplary damages. Indeed, section 41.004 of Texas Civ.Prac. & Rem.Code Ann. states, “Exemplary damages may be awarded only if damages other than nominal damages are awarded.” Tex.Rev.Civ.Stat.Ann. § 41.004 (Vernon Supp.1994). However’, nothing precludes an award of actual damages for gross negligence. See, e.g., Smith v. Golden Triangle *725Raceway, 708 S.W.2d at 576 (remanding to trial court on issue of gross negligence and actual and punitive damages attributable to gross negligence); Trevino v. Lightning Laydown, Inc., 782 S.W.2d at 949-50 (“Where the pleadings and evidence authorize an actual damage award, they may be awarded whether the actor was negligent or grossly negligent.”) Thus, a jury finding of actual damages resulting from a grossly negligent act would serve as the predicate for possible exemplary damages in conformance with the statute.
Furthermore, while I agree that generally one cannot recover punitive damages until actual damages have been awarded, I believe that the law also allows exceptions in which an actual “recovery” of damages is not necessary. For example, the Beaumont Court of Appeals recently held that “when exemplary damages are sought under [article XVI, section 26 of the Texas Constitution], it is not necessary that actual damages be recoverable, they need only to exist.” Fuller v. Travelers Indent. Co., 874 S.W.2d 958, 961 (Tex. App.—Beaumont 1994, writ granted); see Tex.Const. art. XVI, § 26 (awarding cause of action for exemplary damages to survivor of decedent killed through wilful act, omission, or gross negligence of another); see also Nabours v. Longview Savings and Loan Ass’n, 700 S.W.2d 901, 904 n. 3 (Tex.1985) (noting cases where punitive damages have been allowed incident to equitable relief where no actual damages were awarded). The majority in the instant case quotes Nab-ours for the proposition that “Texas cases are unanimous in holding that recovery of actual damages is prerequisite to receipt of exemplary damages.” Id. at 903. After citing this general proposition, however, the Nabours court then asserted, “Even in eases where actual damages are not recoverable, it is still necessary to allege, prove and secure jury findings on the existence and amount of actual damage sufficient to support an award of punitive damages.” Id. (emphasis in original); see Fuller, 874 S.W.2d at 961 (underscoring that important aspect of Nabours is acknowledgment that exemplary, damages may be awarded in cases in which actual damages exist, regardless of whether actual damages are recoverable).
c. Worker’s compensation allows recovery for gross negligence
The most visible instance in which a plaintiff is barred from recovering actual damages for negligence but can nevertheless recover exemplary damages is a survivor’s claim for wrongful death due to gross negligence of the deceased’s employer. Tex.Lab.Code Ann. § 408.001 (Vernon Pamph.1994); see Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex.1987). In Wright, the supreme court approved the general rule that “in order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act.” Id. (citing Ft. Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934)). Thus, worker’s compensation in essence removes the question of ordinary negligence from the case. Ghazali v. Southland Corp. 669 S.W.2d 770, 773 (Tex. App.—San Antonio 1984, no writ).
It is evident that the situation in the instant case is analogous to a claim for gross negligence brought under the worker’s compensation statute. Bid for the release which waived ordinary negligence, Appellants would be entitled to recover damages based on that negligence. The fact that they are barred by the signed waiver from pursuing a claim for monetary damages based on ordinary negligence should not bar them from pursuing them claim for damages based on gross negligence.
d. Public policy forbids waiver of gross negligence
Thus, as a matter of public policy, the legislature mandated that a gross negligence claim survives in the case of a worker’s compensation claim. It is axiomatic that an employer should not be able to cause the death of an employee through wilful, wanton, or reckless behavior with impunity. See Ghazali, 669 S.W.2d at 774-75 (affirmance of summary judgment against worker’s compensation claim for gross negligence “would be tantamount to [a] declaration that an employer could never be liable for the homicide of an employee killed in a robbery, that is, that the cause of action based on gross negligence does not exist”). Similarly, a provider of *726services to the public should not be able to cause the death of a patron by an act or omission committed with a conscious indifference to that patron’s safety with absolute impunity. See TexConst. art. XVI, § 26 (person, corporation or company is liable for exemplary damages for homicide committed through wilful act, omission, or gross negligence).
A party who contracts to accept a risk of harm caused by another’s negligent conduct cannot recover for such harm, unless the contractual agreement is invalid as contrary to public policy. Restatement (Second) of ToRTS § 496B (1965). Comment “d” to section 496B states: “General clauses exempting the defendant from all liability for negligence will not be construed to include ... extreme or unusual kinds of negligence, unless such intention clearly appears.” Id. cmt. d. Thus, to hold that signing a general waiver of simple “negligence” forever bars one from pursuing a claim for gross negligence before an impartial trier of fact flies in the face of 4,000 years of law that stands for the proposition that exemplary damages play a “necessary role in preserving the public health and safety.” Moriel, 879 S.W.2d 10, 47 (Doggett, J., concurring in part and dissenting in part); see generally id. at 36-47 (describing history and purposes of exemplary damages from Code of Hammurabi to present day). The majority in Moriel reiterated that punitive damages are levied against a defendant to punish him for “outrageous, malicious, or otherwise morally culpable conduct,” and are levied for the public purposes of punishment and deterrence. Id. at 16-17.
That punitive damages are exempt from comparative negligence reduction is further evidence that our legislature and judicial system acknowledge the public policy value of the imposition of exemplary damages and, by extension, the very distinctive nature of gross negligence. See TexCiv.PRac. & Rem. Code Ann. § 33.002 (Vernon Supp.1994) (comparative responsibility chapter does not apply to exemplary damages based on negligence claim).
[I]t is incorrect to view the award of exemplary damages from the eyes of the recovering plaintiff; rather, the award should be viewed from the eyes of public policy. Second, if gross negligence, wanton conduct, or reckless disregard for the rights of others were a plain vanilla form of negligence, then comparative negligence would necessitate reduction in any damages. In Texas, however, while gross negligence has been defined in a myriad of ways, the distilled essence of those definitions is that ordinary negligence is not of the same ilk as gross negligence. Therefore, the two are not so analogous as to allow comparison for the purpose of reducing compensation.
Anderson v. Trent, 685 S.W.2d 712, 714 (Tex. App.—Dallas 1984, writ ref'd n.r.e.).
In sum, to hold that a waiver of the right to hold a party liable for mere negligence also releases the right to pursue a claim for gross negligence extinguishes the public policy rationale for allowing a gross negligence claim.
SUMMARY JUDGMENT
The majority contends that the absence of a viable simple negligence claim satisfies the Appellees’ burden of pleading and proving that the release absolves them from liability for injuries resulting from their gross negligence. In a claim for gross negligence, “[bjeeause of variations of the circumstances which may be shown at a trial on the merits, summary judgment is rarely justified!)]” Lawrence v. TD Indus. 730 S.W.2d 843, 845 (Tex.App.—Dallas 1987, writ refd n.r.e.). As noted previously, gross negligence differs from ordinary negligence in that the defendant must be consciously indifferent, and his or her conduct must create an extreme degree of risk. Moriel, 879 S.W.2d at 23.
A defendant moving for summary judgment on the basis of an affirmative defense must establish that defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). The only evidence supporting Appellee’s claim that the gross negligence claim is barred by an express assumption of the risk is the release document itself. As noted by the majority, in order to release a claim effectively, the instrument must at least mention the claim to be released. See Victoria Bank & Trust Co. *727v. Brady, 811 S.W.2d 931, 938 (Tex.1991); see generally supra at 10 (discussing necessity of unequivocal language of waiver). Although the word “negligence” is used, the words “gross negligence” do not appear anywhere in the document, nor does the document discuss aggravating circumstances that could lead to a finding of gross negligence, such as wilful, wanton, or reckless conduct. The parties in this case identified the level of duty, the breach of which would be covered by the release- — -a breach of the duty of ordinary care. From the express language of the document and its plain meaning, the parties did not intend that the release would apply should the owner or operator act with conscious indifference. The agreement therefore contains no language that could be fairly construed to give notice that a claim for gross negligence would be barred. In other words, there is no basis for holding as a matter oflaiu that Mrs. Newman assumed all of the risks of any injuries she might suffer as a result of Appellees’ gross negligence. See Lawrence v. TD Indus. 730 S.W.2d at 845 (summary judgment reversed in gross negligence claim because issues of intent, knowledge, and state of mind are not susceptible to being readily controverted and are best left to the trier of fact).
Nor does an affirmative defense of release bar such a claim. The previous discussion is equally applicable here. Construing the document narrowly, as we must, Victoria Bank, 811 S.W.2d at 938, we would find that Appel-lees have failed to establish, as a matter of law, a defense of release as to the gross negligence claim.
CONCLUSION
In summary, I believe that the majority errs by placing its reliance solely on the issues of whether gross negligence and simple negligence are completely “separate” causes of action and whether the absence of recovery of “actual damages” based on negligence precludes a claim for gross negligence. I would hold that gross negligence is a distinct and separable issue which, on the basis of public policy, cannot be waived by a release of liability. Therefore, the gross negligence claim should be remanded to the trial court for determination in accordance with Smith v. Golden Triangle Raceway.1 Furthermore, I would conclude that Appellees did not establish their affirmative defense to sustain the summary judgment as a matter of law on the issue of gross negligence.
. To give effect to the waiver of ordinary negligence, the existence of such negligence would be determined by the trier of fact. If it were found that negligence occurred and damage resulted, the fact finder would determine the amount of actual damages based on ordinary negligence. The fact finder would then be required to make the appropriate determination as to whether gross negligence occurred, and the amount of any actual and exemplary damages resulting from gross negligence. The defendant would be absolved from the negligence finding and any resulting actual damages based on the signed release, and only the damages resulting from gross negligence would be assessed. Such a procedure would give effect to the intent of the parties in executing the release.