Negligence vs Gross Negligence – What’s the difference?

Posted on October 9, 2023

Negligence is unintentional but irresponsible conduct that leads to an injury. Gross negligence is typically defined as conduct showing extreme indifference or a reckless disregard for someone’s safety or property. Because gross negligence is more egregious than ordinary negligence, it can lead to greater liability and higher damages in a personal injury case, or overcome certain legal defenses.

What is ordinary negligence?

Ordinary negligence is an act or omission that a reasonably prudent person would not do in similar circumstances.[1]

If someone’s negligence causes you harm, then they can be held liable and made to compensate you if:

• they had a duty of care to keep you safe,
• they breached that duty of care, and
• that breach of duty was the legal and proximate causation of your losses.[2]

Some examples of ordinary negligence are:

• not driving with reasonable care and causing a car accident after going through a stop sign that you did not see, and
• failing to take reasonable precautions and clean up a wet floor, leading to a slip and fall

In these negligent actions, the act or omission was not what a reasonable person would do. They were accidental and could conceivably cause harm or an injury to someone else.

What is gross negligence?

Gross negligence is generally defined as conduct that exhibits a reckless disregard for the safety of others, or a blatant indifference to one’s legal duty of care.[3] However, some states define it as an intentional failure to uphold a legal duty of care in reckless disregard of the consequences that this failure would have on others.[4]

In a couple of states, personal injury law does not recognize different degrees of negligence, including gross negligence.^[5]

In states that do recognize it, gross negligence can be thought of as egregious negligence, or as ordinary negligence but much worse or more culpable.

Some examples of gross negligence are:

• speeding through a parking lot with lots of pedestrians in it,
• leaving a nursing home resident without care for a week, and
• driving while under the influence of alcohol (DUI).

In these cases, the conduct was a choice that made an injury foreseeable.

What is the difference between the two?

Gross negligence is more culpable than ordinary negligence.

Ordinary negligence is accidental. You can be negligent if you:

• get distracted,
• make a careless mistake,
• forget something,
• do not notice something, or
• are inattentive.

Gross negligence is worse. You generally have to make a choice that imperils others, like being a drunk driver.

For this reason, which type of negligence you were hurt by can alter your personal injury claim in several ways. A personal injury lawyer from a reputable law firm can advocate on your behalf and argue that you were hurt by extreme carelessness rather than just inattention. This can help to ensure that the defendant’s insurance company pays for more than just your medical bills.

How can it impact a negligence claim?

In a personal injury lawsuit based on negligence, it can matter whether the defendant behaved with ordinary or with gross negligence. The 3 most important ways that the distinction can alter the case are in:

1. preventing the enforcement of a liability waiver,
2. overcoming the defense of assumption of the risk, and
3. damages available.

A personal injury attorney can use this distinction between negligent acts to maximize your recovery.

1. Liability waivers

A liability waiver is a legally enforceable contract in which you agree to assume the risk of injury in exchange for participating in a potentially dangerous activity.

They are common in risky activities such as:

• organized sports,
• skydiving, and
• whitewater rafting.

They are also known as:

• release agreements,
• exculpatory provisions,
• release of liability waivers,
• hold harmless agreements, and
• assumption of liability contracts.

Generally, though, these release agreements only immunize defendants from injuries caused by their ordinary negligence. You can prevent the release from being enforced if you can show that your injuries were the result of:

• gross negligence,
• reckless conduct,
• intentional acts or omissions, or
• illegal activity.[6]

Therefore, if you signed a liability waiver and then got hurt because of the other party’s gross negligence, you can overcome the waiver and pursue your rights in court.

These releases generally have to be unambiguous about the rights you are waiving to be enforced.[7]

2. Assumption of the risk defense

Assumption of the risk is a legal defense to civil liability. It argues that, by voluntarily choosing to engage in an inherently risky activity, you assumed the risk of getting hurt while partaking in it.[8]

However, defendants cannot rely on this defense when they caused your injuries by:

• unreasonably increasing the risks of injury over those that are inherent in the activity,
• unreasonably failing to minimize a risk that is not inherent in the activity,
• unreasonably exposing you to an increased risk of harm, or
• engaging in grossly negligent, reckless, or intentional conduct.[9]

3. Damages available

If you were hurt by way of someone’s gross negligence, you may recover more compensation. You may also be entitled to punitive damages, also known as exemplary damages.

When someone’s ordinary negligence causes your injuries, you will generally only recover compensatory damages. This is financial coverage for all of your losses associated with the accident. This includes economic damages like your medical expenses and property damage, and non-economic damages like your pain and suffering. It also includes loss of consortium for your loved ones’ mental anguish and loss of your services.

When you are hurt by way if someone’s gross negligence, the odds that you are awarded punitive damages increases. Punitive damages are meant to punish the defendant by overcompensating you. In some cases, these awards can be quite high. Additionally, the jury may be more sympathetic to your plight and more generous in its compensation award.

Legal References:

[1] Black’s Law Dictionary, “Negligence.”

[2] See California Civil Jury Instructions (CACI) No. 400 and Ladd v. County of San Mateo, 12 Cal.4th 913 (1996).

[3] Black’s Law Dictionary, “Gross Negligence.” See also CACI No. 425.

[4] White v. Hansen, 837 P.2d 1229 (1992) (Colorado).

[5] Hanks v. Powder Ridge Restaurant Corp., 885 A.2d 734 (Conn. 2005).

[6] See, e.g., California Civil Code 1668 CIV, and Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915 (Tex. App. 2013).

[7] See Bennett v. United States Cycling Federation, 193 Cal.App.3d 1485 (1987).

[8] See Knight v. Jewett, 3 Cal.4th 296 (1992).

[9] See CACI No. 470.