Gross negligence in Colorado is defined as intentional and reckless conduct. It is more serious than ordinary negligence, which is absent-minded or careless behavior. Liability waivers never insulate businesses from being sued for grossly negligent actions. And at trial, judges are more likely to grant punitive damages in gross negligent cases than in ordinary negligent cases.
In this article, our Colorado personal injury attorneys discuss the following:
- 1. What is gross negligence in Colorado?
- 2. How is ordinary negligence different?
- 3. What is the burden of proof?
- 4. What are the damage caps?
- 5. What if the plaintiff signed a waiver?
- 6. Can gross negligence be a defense to homicide?
1. What is gross negligence in Colorado?
The legal definition of gross negligence is:
The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another[.]
In short, it is deliberate negligence. The person may not intend to harm anyone or anything. But the behavior is harmful.
The elements of gross negligence are:
- The defendant has a duty towards the plaintiff;
- The defendant intentionally breaches this duty;
- This breach is in reckless disregard of the fallout;
- This breach causes the defendant’s injuries; and
- These injuries result in money damages1
Some examples of grossly negligent actions are:
- Drunk driving
- Jaywalking on a busy street
- Carrying a loaded and cocked gun
- Dropping a cigarette butt at a gas station
- Not putting a child in a car seat
All of these scenarios are highly risky. Someone could get hurt. Or something could get damaged. Only luck would prevent any injuries.
2. How is ordinary negligence different?
Gross negligence is more intentional than straight negligence. Negligence is absent-minded. Gross negligence is deliberate.2
Example: Evie and Ben are waiters at a Denver restaurant. Both their customers ask for milk.
Evie grabs a carton from the fridge. She neglects to check the expiration date. She serves expired milk to her customer. The diner develops food poisoning.
Ben sees that it is expired but figures it is probably okay. His customer develops food poisoning also.
Here, Evie was negligent. She simply forgot to check the expiration date. She thought the milk was still good. She did not intentionally serve spoiled milk.
Meanwhile, Ben was grossly negligent. He knew the milk was spoiled. But he intentionally took the risk of serving it. He did not want to hurt anyone. But his behavior was hurtful.
In the above example, Evie had a blameworthy accident. This is negligence. In contrast, Ben made a blameworthy choice. This intentionality is what separates negligent from gross negligent conduct.
3. What is the burden of proof?
When gross negligence cases go to trial, plaintiffs have to show the defendant is liable by a preponderance of the evidence. In other words, the defendant is more likely than not liable. A jury would need to believe a plaintiff by just 51%.
This is a lower burden of proof than in criminal cases. Prosecutors must prove guilt beyond a reasonable doubt. People can be found civilly liable even if there remains a doubt.3
4. What are the damage caps?
Certain types of damages are capped under Colorado law:
Personal Injury Damages
Cap in Colorado
|Medical malpractice||$300,000 for non-economic damages
$1,000,000 on total damages (“umbrella cap”)
|Non-economic loss or injury||$613,760, or
$1,227,530 if the plaintiff can show clear and convincing evidence
|Derivative non-economic loss or injury||$613,760|
|Non-economic loss in wrongful death cases||$571,870|
|Dram Shop Act claims (liability for bars or restaurants that give alcohol to people who later get in accidents)||$368,260|
|Solatium damages (for emotional harm)||$114,370|
|Punitive damages||No more than the award for economic damages. Economic damages are compensatory damages that can be calculated. Economic damages typically include:
Judges are more likely to grant punitive damages in gross negligence cases than in ordinary negligence cases. This is because gross negligence is deliberate. And the purpose of punitive damages is to punish defendants for especially harmful behavior.4
5. What if the plaintiff signed a waiver?
Waivers may protect companies from being sued for negligence. But never for gross negligence. Therefore, accident victims may sue grossly negligent companies for causing their injuries. Waivers that claim otherwise are unenforceable.5
6. Can gross negligence be a defense to homicide?
Yes. People facing homicide charges can claim that another person’s gross negligence relieves them of liability. The Colorado Supreme Court explained:
Gross negligence, because it is unforeseeable, is an intervening cause, and constitutes a defense in those instances where, but for the gross negligence, death would not have occurred.6
In short, the victim would still be alive had the other person not been grossly negligent.
Example: Jeffrey is texting while driving down a street. A lady pedestrian is walking down a sidewalk. Suddenly a skateboarder speeds down the sidewalk and slams into the pedestrian. This causes her to careen onto the street right in front of Jeffrey. Jeffrey runs her over, killing her.
If Jeffrey gets charged with homicide, he has a good defense. Here, the pedestrian would have lived but for the skateboarder’s grossly negligent actions. Even though Jeffrey was texting, the skateboarder was at fault.
In California? Read our article about gross negligent laws.
- White v. Hansen, 837 P.2d 1229, 1231 (Sup. Ct. Colo. 1992).
- Vigil v. Franklin, 103 P.3d 322 (Sup. Ct. Colo. 2004).
- City of Littleton v. Industrial Claim Appeals Office, 370 P.3d 157 (Sup. Ct. Colo. 2016).
- Colorado Secretary of State (January 14, 2020); Colorado Senate Bill 19-109.
- Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Sup. Ct. Colo. 2004).
- CRS 18-3-103; People v. Fite, 627 P.2d 761 (Sup. Ct. Colo. 1981); also see CRS 13-21-108.2 (re. emergency medical service providers).