California law defines negligence as causing injury by failing to act with reasonable caution. In contrast, gross negligence is injuring someone through extreme disregard.
Gross negligence is therefore more serious than ordinary negligence, but not as serious as recklessness or intentional acts.
The jury instruction CACI No. 425 states 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 oneself or to others. A person can be grossly negligent by acting or by failing to act. 1
The difference between ordinary and gross negligence is important in two contexts:
- When a statute imposes liability on a defendant for gross negligence but not ordinary negligence,2 or
- When you (the plaintiff) have signed an “assumption of the risk” agreement, which prevents you from suing the defendant for ordinary negligence – but not for gross negligence.3
To help you better understand the concept of gross negligence, our California personal injury lawyers discuss:
- 1. What is negligence?
- 2. What is the difference between ordinary negligence and gross negligence?
- 3. What are some examples?
- 4. When does “gross negligence” get applied?
- 5. Can gross negligence be capped in California?
- 6. How do defendants fight the lawsuits?
- Additional resources
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.”
1. What is negligence?
California law requires you to act with an ordinary standard of care so as to avoid harming others. Failure to follow this duty of care is negligence, referred to sometimes as “ordinary” negligence.
An example of ordinary negligence is a texting pedestrian accidentally walking into another pedestrian, knocking her over. Pedestrians have a duty of care to use sidewalks safely.
2. What is the difference between ordinary negligence and gross negligence?
Gross negligence is more blameworthy conduct than ordinary negligence.4 When you allege that the defendant in a lawsuit committed gross negligence, you first have the burden to prove by a preponderance of the evidence the same four elements as ordinary negligence:
- The defendant had a duty of care;
- The defendant breached that duty;
- The breach caused your injuries; and
- Those injuries resulted in damages.
Then you would have to prove that the defendant’s conduct was “extreme.”5 This “extreme” conduct is what separates ordinary from gross negligence.6
Example: During a routine maintenance check, an amusement park ride operator does not notice that a bolt has come loose. This lack of care is most likely ordinary negligence. Though if the employee did not bother to conduct a scheduled inspection at all, a jury might find that the failure to do so constituted gross negligence.
A procedural difference between negligence and gross negligence is that gross negligence is not a distinct “cause of action” in California. This means that you can allege gross negligence only if the case involves a statute that concerns gross negligence.
In contrast, you can sue for negligence whether or not the defendant may have violated a statute.7
3. What are some examples?
The following scenarios potentially qualify as “gross negligence” under recent California case law.
- A paramedic failed to check the pulse and blood pressure of a patient in a sickle cell crisis. Had the paramedic done so, they would have found symptoms for shock and then treated the patient for it. Instead, the patient died.8
- A gym failed to perform regular preventative maintenance. This resulted in a back panel falling on a gym patron due to a missing bracket that was designed to hold the patron’s back panel in place.9
- An event management company organizing a half-marathon event failed to provide adequate EMS services. This may have caused one of the runners to die after he suffered a cardiac arrest at the finish line.10
The following scenarios do not qualify as “gross negligence” under recent California case law.
- A fire chief did not let a firefighter attempt a surf rescue because the fire chief had no reason to believe the firefighter was experienced in surf rescues. Even though the victim died, the fire chief’s decision was not an extreme departure from the duty of care.11
- The tile floor of a shower in a fitness health club was soapy, causing a patron to slip and break his arm. The shower had no handrails, shower mats, or friction strips. These conditions did not constitute “an extreme departure from safety standards,” and the club did not conceal “a known dangerous condition.”12
- A riding coach let a 17-year-old equestrian ride a horse that had prior falls. The horse fell, killing the girl. The coach did not try to conceal the horse’s condition, and her conduct did not deviate from the normal standard of care.13
4. When does gross negligence get applied?
In California, gross negligence claims come into play when a statute or a liability waiver prevents a defendant from being sued for negligence. Since you cannot recover damages for negligence due to the statute or liability waiver, you then try to win a gross negligence claim.
Companies and people who are statutorily prevented from using a release agreement to relieve themselves of liability for gross negligence include (but are not limited to):
- Common carriers (such as planes, taxis and buses);14
- Government entities that permit “hazardous recreational activity” (such as swimming) on public property;15
- People with Red Cross certification who provide CPR at an emergency scene;16
- Companies that provide training and/or facilities for hazardous recreational activities, including:
- Ski resorts,
- Horse stables,
- Racetracks and driving schools,
- Scuba companies, and
- Whitewater rafting companies.17
5. Can gross negligence be capped in California?
No. Whereas it may be possible to cap liability for simple negligence, damages for gross negligence cannot be capped in California.18
6. How do defendants fight the lawsuits?
Defendants sued for gross negligence may try to fight the allegations by claiming that:
- They owed you no duty of care;
- You assumed the risk of getting injured;
- Their behavior may have been negligent, but not grossly negligent; and/or
- You were partly or all to blame.
Note that California’s comparative negligence law allows you to still recover damages even if you were partly to blame for your injuries. Your damages would just be reduced in proportion to your degree of fault.
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 – Boston University Law Review.
- Gross Negligence – Washington Law Review.
- High Care and Gross Negligence – American Law Review.
- California Civil Jury Instructions (CACI) 425; City of Santa Barbara v. Superior Court (California Supreme Court, 2007) 41 Cal.4th 747. See also Joshi v. Fitness Internat. LLC (Cal.App. 2022) ; People v. Doane (Cal.App., 2021) .
- Eriksson v. Nunnink (2011) 191 Cal.App.4th 826; Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960; see also Board of Registered Nursing v. Superior Court, (2021) 59 Cal. App. 5th 1011; see also People v. Maxwell, (2020) 58 Cal. App. 5th 546.
- See CACI 451, Affırmative Defense—Contractual Assumption of Risk.
- See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072; Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349. Jimenez v. 24 Hour Fitness USA, Inc, (2015) 237 Cal.App.4th 456.
- Rosencrans v. Dover Images, Ltd, supra.
- Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11.
- Eriksson v. Nunnink (2015) 233 Cal.App.4th 708.
- Wright v. City of L.A., (1990) 219 Cal. App. 3d 318.
- Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632.
- Hass v. RhodyCo Productions, supra.
- Decker v. City of Imperial Beach, supra.
- Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867.
- Eriksson v. Nunnink, supra.
- California Civil Code § 2175.
- California Government Code § 831.7(c)(1).
- California Civil Code 1714.2 (b).
- See, for example, footnotes 12-17 in City of Santa Barbara, endnote 1.
- City of Santa Barbara v. Superior Court, supra. See also California Civil Code section 1668.