Negligence vs Gross Negligence in California – What’s the difference?

In California, negligence is the failure to act like a reasonable person in similar circumstances. Gross negligence is more extreme.

You act with gross negligence in California if your conduct shows a reckless disregard for the safety of others. While the results of your grossly negligent behavior might not have been intentional, they are still more culpable than if they were just negligent.

In this article I explain what you need to know about negligence and gross negligence in California law. Also listen to our informative podcast:

Ordinary Negligence

Ordinary negligence, often referred to as just “negligence,” is an act or omission that a reasonably prudent person would not do in a similar situation.¹

If someone acts negligently and you get hurt, they can be held liable. You can hold a defendant liable in California by filing a personal injury claim and showing, by a preponderance of the evidence, that:

1. they had a duty of care to keep you safe,
2. they breached that duty of care, and
3. that breach of duty caused your losses.²

If you can hold them liable, then you can recover financial compensation for your losses. It is up to you to prove the extent of those losses, also known as legal damages.

Duty of Care

The duty of care is the legal obligation people have to prevent foreseeable harm to others.³ It is often referred to as the duty to take reasonable care. The legal obligation can come from:

• statutes,
• regulations, or
• legal precedent.

For example, car drivers have a legal obligation to obey the rules of the road and drive in a way that keeps others safe.

Some people may have a heightened duty of care, like doctors, when treating their patients.

Breach

Once it has been established what duty of care the defendant owed to you, you have to show that they failed to uphold it. This is a negligent act or omission.

Some acts or omissions that are examples of ordinary negligence include:

• not seeing another vehicle while merging on the highway and causing a car accident,
• not mopping a wet floor or taking other reasonable precautions to warn shoppers of it, or
• driving while distracted and missing a stop sign, causing a rear-end truck accident.

Note that all of these negligent actions are the result of inattention or a careless mistake.

Causation

You then have to show that the negligent act caused your suffering.

There are two elements to causation in California:

1. cause in fact, and
2. proximate cause.

For it to be a cause in fact, it must be true that you would not have gotten hurt without the defendant’s conduct. The law asks, “but for the defendant’s negligence, would you have gotten hurt?” If the answer is “no,” then this element of causation is satisfied.

There is proximate cause, also known as legal cause, if it would be fair to hold the defendant liable for their negligence. If the defendant’s negligence set off a chain of events that only hurt you in a way unrelated to the negligent act, then the negligence is not the proximate cause of your losses. The key factor in proximate cause is generally the foreseeability of the harm.⁴

Damages

Once you have established liability, then you would have to show the extent of your losses. Because the defendant caused them, even if only through their negligence, you are entitled to compensation for them.

Gross Negligence

In California, gross negligence is generally defined as conduct that either exhibits a:

• reckless disregard for the safety of others, or
• blatant indifference to upholding a legal duty of care.⁵

This is more culpable than ordinary negligence. However, it does not necessarily constitute intentional conduct. Instead, it is often a choice by the responsible party that was likely to cause harm to someone else.

Some examples of gross negligence are:

• a drunk driver,
• a nurse ignoring the cries of a nursing home patient, or
• speeding in a busy parking lot.

How Gross Negligence Can Impact a Personal Injury Lawsuit

Most personal injury claims in California are based on negligence. If you can show that the person who hurt you was behaving in a grossly negligent manner, there are three ways that it can affect your claim. It can:

1. make a liability waiver unenforceable,
2. overcome the defense that you assumed the risk of harm, and
3. make punitive damages more likely.

“Gross negligence is worse than ordinary negligence. Because their behavior is worse, the law is more willing to hold people who act in grossly negligent ways liable for the harms that they cause. This can make it easier for the injured party to recover what they need and deserve in a personal injury case.” – personal injury attorney Neil Shouse

Liability Waivers

If you got hurt doing an activity that required you to sign a liability waiver before participating, that waiver may be unenforceable if you were hurt by the defendant’s gross negligence.⁶

Liability waivers only insulate defendants from lawsuits over injuries caused by their ordinary negligence.

Assumption of the Risk

Defendants cannot be held liable if you assumed the risk of getting hurt. By voluntarily engaging in an inherently risky activity, you assume the risks of harm that are generally associated with it.⁷

However, the assumption of the risk defense does not insulate defendants from their grossly negligent conduct.⁸

Punitive Damages

Punitive damages are those imposed by the court to punish the defendant for wrongful conduct. They are extremely rare in cases based on ordinary negligence. Punitive damages are far more likely to be imposed if the defendant was grossly negligent.

Negligence versus Medical Malpractice

Medical malpractice, also referred to as medical negligence in California, is the failure to provide the level of care that a reasonably careful healthcare professional in their field would have provided.⁹

This makes medical malpractice different from negligence.

Basically, medical malpractice is about the standard of care that the defendant had to provide. Negligence and gross negligence are about how badly the defendant breached their duty of care. Medical malpractice cases can allege ordinary negligence for simple carelessness, or gross negligence for extreme carelessness.

Gross Negligence versus Criminal Negligence

Gross negligence and criminal negligence are very similar in California. Both types of negligence involve gross deviations from the applicable standard of care that puts others at foreseeable risk of harm.

However, criminal negligence ends with a crime, such as vehicular manslaughter.

Damages in Negligence Claims

Whether you are the victim of gross or ordinary negligence in California, you are entitled to compensation for your losses. This includes all of your economic losses, including your property damage, medical bills, and lost wages, as well as your noneconomic damages, such as for your mental anguish and physical pain.

If the defendant acted with gross negligence, you may also recover punitive damages. The personal injury lawyers at our law firm have found that gross negligence is far more likely to lead to punitive damages being imposed.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Reflections on Willful, Wanton, Reckless, and Gross Negligence – Louisiana Law Review.
• An Analysis of Gross Negligence – Marquette Law Review.
• Torts – Gross Negligence – Overview by Boston University Law Review.
• Gross Negligence – In-depth discussion by Washington Law Review.
• High Care and Gross Negligence – Analysis by American Law Review.

If you are interested in gross negligence in criminal law, you may wish to review our article on “California’s Legal Definition of Criminal Negligence.”

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Legal References