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What is Gross Negligence?

Ordinary negligence vs. gross negligence

Learn the difference between ordinary negligence and gross negligence

Most people are familiar with the concept of negligence, but there are actually 2 different types of negligence.
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The majority of personal injury cases are based on the legal concept of “negligence.” Ordinary negligence and gross negligence require the same elements to establish liability, but gross negligence is considered a more egregious example of ordinary negligence.

It may seem like splitting hairs, but establishing gross negligence allows plaintiffs in some states to recover punitive damages.

What is negligence?

Negligence is the failure to exercise the appropriate level of care in a particular situation. To prove negligence, a plaintiff must establish the following elements:

  • Duty. The plaintiff must prove that the defendant owed them a duty of care. A duty of care arises when the law recognizes a relationship between the plaintiff and defendant requiring the defendant to exercise a certain standard of care to avoid harming the plaintiff.
  • Breach. The plaintiff must prove that the defendant breached the duty of care. A breach occurs when the defendant fails to meet the standard of care required.
  • Causation. The plaintiff must prove that the injury was caused by the defendant’s breach.
  • Damages. The plaintiff must prove that they actually suffered some harm.

The difference between ordinary negligence and gross negligence is the degree of care (or lack thereof) exercised by the plaintiff.

In short, gross negligence requires a greater lack of care than ordinary negligence.

What is ordinary negligence?

If a person fails to exercise “reasonable care” and someone is injured as a result, the person who failed to exercise reasonable care can be sued for ordinary negligence.

But what exactly is reasonable care?

Reasonable care is the level of care that an ordinarily prudent person would use under the circumstances to avoid injury to another.

Let’s take a look at an example:

Miguel was driving his vehicle down a 2-lane road in extremely icy and snowy conditions. The speed limit was 30 mph and Miguel was driving his vehicle 30 mph.

While coming around a bend, Miguel’s vehicle slid into the other lane and struck a vehicle.

Miguel can be sued for ordinary negligence because an ordinarily prudent person would have driven slower than the speed limit in extremely icy and snowy conditions. In other words, Miguel failed to exercise reasonable care.

What is gross negligence?

Gross negligence requires a greater lack of care than is implied by the term ordinary negligence. In other words, gross negligence is a more egregious example of ordinary negligence.

Consider the following example:

Miguel was driving his vehicle down a 2-lane road in extremely icy and snowy conditions. The speed limit was 30 mph and Miguel was driving his vehicle 60 mph. In addition, Miguel was intoxicated.

While coming around a bend, Miguel’s vehicle slid into the other lane and struck a vehicle.

Miguel can be sued for gross negligence because his actions (driving 30 miles over the speed limit and being intoxicated) were more egregious than the mere failure to exercise reasonable care.

If the difference between ordinary negligence and gross negligence doesn’t seem too clear, take comfort in the fact that you’re not alone. Courts can’t seem to agree on a bright-line rule to distinguish between ordinary negligence and gross negligence.

Take a look at some of the ways courts have described gross negligence in an effort to distinguish it from ordinary negligence:

  • “Gross negligence is the twilight zone which exists somewhere between ordinary negligence and intentional injury.”

    -Pleasant v. Johnson, 325 S.E.2d 244 (N.C. 1985)

  • “Gross negligence represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.”

    -Saltz v. First Frontier, L.P., 782 F. Supp. 2d 61, 75 (S.D.N.Y. 2010)

  • “Gross negligence is the failure to use even slight care.”

    -Spence v. Vaught, 367 S.W.2d 238, 240 (Ark. 1963)

  • “Gross negligence is the want of that diligence which even careless men are accustomed to exercise.”

    -Ambrose v. New Orleans Police Dep’t. Ambulance Serv., 639 So.2d 216, 219-20 (La.1994)

  • “Gross negligence is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.”  

    -Corrigan v. Clark, 36 A.2d 631, 632 (N.H. 1944)

The bottom line:

The more outrageous the defendant’s actions, the more likely the defendant is grossly negligent.

Examples of actions that would probably be considered grossly negligent in most states include:

  • A doctor operating on the wrong limb
  • A nursing home that failed to provide food
  • A store owner failing to fix a broken porch step despite watching several customers fall
  • A driver speeding in an area with heavy pedestrian traffic

Why does it matter whether a person is liable for ordinary negligence or gross negligence?

Plaintiffs may be able to recover more damages if they’re able to establish that the defendant was grossly negligent.

Punitive damages are intended to punish a defendant and deter similar behavior in the future. In states that allow punitive damages, a defendant must be grossly negligent in order for a plaintiff to receive punitive damages.

What’s more, proving gross negligence may be necessary if the plaintiff signed a liability waiver. This is because liability waivers typically protect defendants from being sued for ordinary negligence but not gross negligence.

Should I contact a personal injury attorney?

Whether you think you’ve been the victim of ordinary negligence or gross negligence, it’s a good idea to meet with an experienced personal injury attorney near you. You can find one using our free online directory.

A personal injury attorney can explain how the courts in your particular state define gross negligence and whether or not gross negligence can get you punitive damages.

 

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