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:
- When a statute imposes liability on a defendant for gross negligence but not ordinary negligence,2 or
- 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:
- The defendant had a duty of care;
- The defendant breached that duty;
- The breach caused the plaintiff’s injuries; and
- 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
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, the paramedic would have found symptoms for shock and then treated the patient for it. The paramedic’s failure to initiate this treatment caused the patient to die.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. Preventative maintenance could have fixed this problem before it hurt anyone.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. Had there been proper medical care available, perhaps he could have been saved.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 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
- 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
- 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
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 people injured by the defendant cannot recover damages for negligence due to the statute or liability waiver, they 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 airplanes, 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
In short, these people and professions may be immune from liability for ordinary negligence. But this immunity does not let them off the hook for gross negligence as a matter of public policy. If they injure anyone by extreme conduct that surpasses ordinary negligence, then the victims should be able to sue and recover damages on the basis of gross negligence.
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
Injured by someone’s gross negligence? Call us for help…
If you or someone you know has been injured by someone else’s negligence or willful misconduct, we invite you to contact us for a free consultation.
Even if you signed a waiver of liability and assumption of the risk agreement, you may still be able to recover compensatory and punitive damages.
Call us to discuss your case with a lawyer. We create attorney-client relationships in Los Angeles and throughout all jurisdictions in the state of California.
We may also be able to help if you were injured as a result of negligence in Nevada.
- California Civil Jury Instructions (CACI) 425; City of Santa Barbara v. Superior Court (California Supreme Court, 2007) 41 Cal.4th 747.
- 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, e.g., 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.