Gross Negligence – A Legal Concept in California Personal Injury Law

In California law, the term “gross negligence” refers is a particularly dangerous level of conduct that subjects the defendant to a higher degree of liability. Gross negligence is 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:

1. When a statute imposes liability on a defendant for gross negligence but not ordinary negligence,² or
2. When a plaintiff has signed an “assumption of the risk” agreement, which prevents the plaintiff 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?

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 everyone 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. By paying more attention to texting than walking, the pedestrian was negligent against the fellow pedestrian he knocked over.

2. What is the difference between ordinary negligence and gross negligence?

Gross negligence is more blameworthy conduct than ordinary negligence. California law has no precise definition of it. But case law describes it variously as:

• Very great negligence,
• A want of even scant care,
• Just short of reckless disregard,
• An extreme departure from the ordinary standard of conduct by a reasonable person, or
• A failure to exercise even that care that a careless person would use.⁴

When a plaintiff in a lawsuit alleges that the defendant committed gross negligence, the plaintiff first has the burden to prove by a preponderance of the evidence the same four elements as ordinary negligence:

1. The defendant had a duty of care;
2. The defendant breached that duty;
3. The breach caused the plaintiff’s injuries; and
4. Those injuries resulted in damages.

Then the plaintiff would have to prove that the defendant’s conduct was “extreme.”⁵ This “extreme” conduct is what separates ordinary from gross negligence. Or as one California appellate judge recently put it:

In assessing where on the spectrum a particular negligent act falls, ‘”[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor [defendant] is required to exercise caution commensurate with it.”‘⁶

An effective way to distinguish negligence from gross negligence is through an illustration:

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. But 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.

Failing to notice a loose bolt is careless. But failing to conduct an entire inspection – which is a prerequisite for the carnival rides operating at all – is an extreme lapse of judgment and therefore rises to the level of gross negligence. An injured rider would likely be able to recover substantial damages in a roller coaster / amusement park injury lawsuit.

A procedural difference between negligence and gross negligence is that gross negligence is not a distinct “cause of action” in California. This means that plaintiffs can allege gross negligence only if the case involves a statute that concerns gross negligence. In contrast, a plaintiff can sue for negligence whether or not the defendant may have violated a statute.⁷

The following scenarios do not qualify as “gross negligence” under recent California case law.

1. A fire chief did not let a firefighter attempt a surf rescue of a victim because the fire chief had no reason to believe the firefighter was experienced in surf rescues, and the firefighter would be putting himself at extreme risk. Even though the victim died, the fire chief’s decision was not an extreme departure from the duty of care.¹¹
   
2. 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, which could qualify as negligence on the part of the club. But it does not qualify as gross negligence since the floor’s conditions are what “one would expect in a health club shower facility.” The conditions did not constitute “an extreme departure from safety standards.” And the club did not conceal “a known dangerous condition.”¹²
3. A riding coach let a 17-year-old equestrian ride a horse that had prior falls. The horse fell, killing the girl. Even though the horse had prior falls, the riding coach’s conduct did not qualify as gross negligence. She did not try to conceal the horse’s condition, and her conduct did not deviate from the normal standard of care.¹³