Negligence vs Gross Negligence – What’s the difference?

Posted on August 16, 2022

Gross negligence refers to a level of negligent conduct that is more egregious than ordinary negligence. Ordinary negligence is generally restricted to unintentional conduct that led to an injury. Gross negligence, however, is usually defined as willful conduct that showed an extreme indifference or reckless disregard for someone else’s safety or property.

A defendant’s gross negligence may lead to greater liability and higher damages in a personal injury case.

What is gross negligence?

The definition of gross negligence is generally willful misconduct that shows an extreme indifference or a reckless disregard for your safety or the safety of others. Different states or jurisdictions may define it slightly differently.

In California, for example, case law from the state supreme court has said that gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to him- or herself or to others.¹

In Colorado, it is defined slightly differently. There, it is an intentional failure to perform a manifest duty in reckless disregard of the consequences to the life or property of someone else.²

Regardless of the state, gross negligence sits between normal negligence and recklessness. It covers both

• actions and
• failures to act.

What is ordinary negligence?

Ordinary negligence is the failure to use reasonable care to prevent harm to someone. You can be negligent if you do something that a reasonably prudent person would not do in similar circumstances. You can also be negligent if you fail to do something that a reasonable person would do.

Negligence can take the form of

• accidental or
• unintentional conduct.

Even though negligence is not something that you do intentionally, it can still lead to someone else getting hurt. If you had a legal duty of care to keep the victim free from harm, and you negligently fail to uphold that duty, you can still be held liable for any of the victim’s injuries caused by your negligent actions or omissions.³

What are some examples of the difference between the two?

Because different states define gross negligence slightly differently, some examples may rise to the level of gross negligence in one state but not in another.

However, in California, some examples of gross negligence would be if:

• someone runs through a group of people standing on the sidewalk,
• someone causes a car accident after deliberately running a stop sign,
• a carnival ride operator decides not to conduct a scheduled safety inspection of an amusement park ride,
• a paramedic does not check the pulse or blood pressure of a patient who is having a sickle cell crisis,⁴
• an event management company organizes a half-marathon but does not provide adequate emergency medical services for runners,⁵ and
• a gym does not maintain its equipment, leading to a machine falling on a patron.⁶

Some examples of regular negligence in California could be if:

• someone walks on the sidewalk while texting and bumps into someone, knocking them over,
• someone causes a car accident after not noticing a stop sign,
• a carnival ride operator conducts a scheduled safety inspection of an amusement park ride, but fails to notice that a bolt has come loose,
• a horse instructor lets a 17-year-old equestrian ride a horse that had prior falls, but did not conceal the horse’s history of accidents,⁷ and
• the shower area in a fitness club does not have handrails, shower mats, or friction grips, but also did not cover up the potential danger of slipping in an area that would foreseeably be slick.⁸

The difference between these 2 sets of examples is how extreme the conduct was. An ordinarily negligent act is generally characterized by inattention that fails to uphold an ordinary standard of care. A grossly negligent act is generally characterized by a

• complete lack of care, or
• such scant care for the rights of others that it is likely to cause an injury.

Will a grossly negligent defendant pay more damages?

In a way, potentially. If you get hurt by someone who was acting with gross negligence, you will not recover more in compensatory damages. However, you may be entitled to punitive damages, if the defendant’s conduct was extremely egregious.

You may also avoid statutory damage caps that would have limited your recovery, had the defendant acted with ordinary negligence.

Your compensatory damages are losses that you sustained due to the defendant’s conduct. They include compensation for your:

• medical bills, including anticipated future medical expenses,
• lost wages, including your lost earning capacity or ability to make money in the future,
• property damage,
• pain and suffering, and
• loss of consortium.

The amount of these damages, however, does not change based on whether the person who hurt you was acting negligently or with gross negligence. Therefore, the compensation that you need to cover these losses does not change, either.

However, if the defendant’s conduct was sufficiently abysmal, you may be entitled to punitive damages. Punitive damages are meant to punish the defendant for egregiously poor conduct and to deter similar conduct by others in the future.⁹ Punitive damages are rarely awarded in cases based on negligence, though, even if the negligence was extreme enough to be gross negligence.

If the defendant acted with gross negligence, rather than ordinary negligence, he or she may also lose the protection of a statutory damage cap. These damage caps are especially common in medical malpractice cases. They limit how much compensation victims can recover. For example, Colorado has a damage cap that limits victims of medical malpractice to:

• $1,000,000 in economic damages, like medical bills and lost income, and
• $300,000 in non-economic damages, like pain and suffering.¹⁰

State law may waive the damage cap if the defendant acted with gross negligence, rather than with ordinary negligence. The damage caps also generally only limit economic or non-economic compensation, but not punitive damages. A judge or jury may use an award of punitive damages to get around a restrictive damage cap to adequately compensate the victim and punish the defendant.

What if the defendant is protected from a lawsuit by a law or liability waiver?

Acting with gross negligence can strip defendants of legal protections afforded by a statute or a liability waiver.

Statutes

Many states have statutes that insulate certain companies and people from liability for their negligence. However, these entities can still be held liable for injuries caused by their gross negligence.

In California, for example, state law makes the following companies and individuals immune from lawsuits based on ordinary negligence:

• common carriers,¹¹
• government entities that permit hazardous recreational activities, like swimming, on public property,¹² and
• anyone certified by the Red Cross to perform CPR who performs CPR at the scene of an emergency.¹³

While these people and companies cannot be held liable for their ordinary negligence, they can be held liable for injuries caused by their gross negligence.

Liability waivers

If you signed a liability waiver but then got hurt because the defendant acted with gross negligence, you can still file a lawsuit.

Liability waivers are legally enforceable contracts. By signing one, you agree that you assume the risk of an injury for participating in a potentially dangerous activity.

However, liability waivers only insulate defendants from injuries that result from their ordinary negligence. They do not cover injuries resulting from their:

• gross negligence,
• recklessness,
• intentional conduct, or
• illegal acts or other violations of criminal law.

If you have signed a liability waiver and got hurt afterwards, you should strongly consider hiring a personal injury lawyer from a reputable law firm. By getting the legal advice of a personal injury attorney, you can make an informed decision about whether you have a cause of action for a gross negligence claim.

---