Gross Negligence (Versus Negligence and Willful Misconduct)

What is gross negligence?

What are the differences between negligence and willful misconduct?

What are some examples?

We will look at what is gross negligence, its meaning, legal definition, example, what elements you need to prove in court, look at gross negligence vs negligence, the difference with willful misconduct and more.

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What is gross negligence

Gross negligence is when someone’s actions or omissions deviate significantly from that of a prudent person placed in a comparable situation.

You can also consider gross negligence to be when a person disregards the consequences of his or her actions on others or legal duty.

Gross negligence requires that a person adopt a behaviour or conduct showing an extreme indifference or disregard for the safety or security of others or does not care for the consequences of his or her actions likely to cause harm.

You’ll be in the presence of gross negligence when a person adopts risky behaviour in such a way as to foreseeably cause harm to another person or someone’s property.

For example:

A property owner fails to block off access to an important construction site resulting in severe bodily injuries to someone on the premises.

The property owner did not mean to hurt anyone but the failure to properly block off access to dangerous parts of the construction site resulted in damages to another.
Author

Gross negligence definition

To understand the meaning of gross negligence, let’s first define “negligence”.

Negligence or a negligent act is when a person acts or omits to act in such a way that it deviates from the conduct of a prudent and reasonable person in the same circumstances.

This type of conduct typically involves a careless mistake or some form of inattention resulting in an injury to another.

To qualify an act or omission as grossly negligent or to say there was gross neglect is to suggest that a person’s actions or omissions significantly deviated from the conduct of a prudent and reasonable person in the same circumstances.

According to Cornell Law School’s Legal Information Institute, the legal definition of gross negligence is as follows:

A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, and can affect the amount of damages.
Author

What is notable with this definition of gross negligence is that conduct of the person who is grossly negligent is such that it appears as if the person acted deliberately or consciously to cause harm or to endanger the safety of another.

In essence, to be grossly negligent, it is to be extremely careless.

Elements of gross negligence 

In some jurisdictions, like the United States, you must prove all the elements of negligence as the basis to prove gross negligence.

To move the needle from “negligence” to “gross negligence”, a plaintiff must also prove that the defendant acted in serious disregard for the right, safety, security or well-being of others or show a marked deviation from the actions of a normally prudent person.

Essentially there are five elements to prove gross negligence:

  • Duty of care
  • Breach of duty of care
  • Damages 
  • Causation 
  • Extreme conduct 

Duty of care

Duty of care means that the defendant owed the plaintiff a duty to act prudently or protect the person.

There are no set rules as to what is the exact duty of care in each and every situation.

There’s a level of court discretion and discernment required of the court to evaluate the overall circumstances of the case. 

You can consider the duty of care to be a standard of reasonable care the defendant should have exercised to avoid causing damages to the plaintiff.

For example:

A restaurant owner should place a “wet floor” sign where the floor is mopped to prevent incoming clients from slipping and falling.

The restaurant owner has a duty to protect the safety of his or her clients in the restaurant.
Author

Breach of duty of care

The second element required to prove gross negligence is the breach of a duty of care.

The breach of duty of care means that the person failed to act prudently or protect the person.

In other words, the defendant should have done something to protect the plaintiff from injury, loss or damages and failed to do so.

For example:

A restaurant owner should place a “wet floor” sign where the floor is The restaurant owner or his staff failed to place a “wet floor” sign on a floor that was just mopped increasing the risk of a slip-and-fall accident.
Author

Damages 

Damages represent the injuries or harm caused as a result of the defendant’s breach of his or her duty of care.

If a person’s gross negligence caused damages, the court will award compensatory damages to compensate the plaintiff for the losses suffered. 

This can be economic losses such as medical expenses and non-economic losses such as pain and suffering.

Causation 

Causation is the direct “cause and effect” between the breach of the defendant’s duty of care and the damages caused to the plaintiff.

The damages suffered by a person must be directly caused by the breach of the duty of care.

For example:

A person coming into the restaurant slips and falls where the staff had mopped.

The personal injury caused by the fall is directly related to the restaurant owner’s breach of duty of care by not placing a “wet floor” sign to warn clients to be careful when passing by.
Author

Extreme conduct

To prove “gross” negligence, you will need to show that a person’s conduct was so far away from what was expected from a reasonable person that caused damages to another.

The extreme conduct, the severity of the consequences of a person’s conduct along with the type of damages caused will be considered by the court to qualify a person’s conduct as grossly negligent.

There must be a high degree of risk that by acting or failing to act in a certain way, there will be a strong probability or likelihood that damages can be caused to others of important magnitude.

For example:

The restaurant owner or staff mops the floor where there were dangerous broken pieces of glass.

A client slips and falls and not only suffers a broken ankle but is severely injured by the broken pieces of glass left over.
Author

Consequences of gross negligence 

A person causing injuries or damages to another as a result of gross negligence will be condemned to pay compensatory damages to the plaintiff.

In some jurisdictions, the plaintiff may also be able to demand punitive damages to “punish” the defendant from acting in a grossly negligent manner.

Compensatory damages 

Compensatory damages are monetary damages awarded by a civil court to compensate the plaintiff for damages or injuries suffered as a result of the defendant’s gross negligence.

Compensatory damages include actual losses such as: 

  • Medical expenses 
  • Cost for physical therapy 
  • Cost of prescription drugs and medicine
  • Cost for any medical equipment needed
  • Cost of the ambulance ride to the hospital 
  • Loss of salary 
  • Reduced capacity to work in the future
  • Transportation costs

In a gross negligence lawsuit, the court can also award general damages or non-economic damages such as:

  • Excessive stress and inconvenience 
  • Anxiety and emotional distress 
  • Mental suffering or anguish 
  • Pain and suffering caused to a person
  • The loss of a person’s enjoyment of life
  • Mental anguish

Punitive damages 

Punitive damages represent an amount awarded to punish a party’s outrageous conduct or deter the party or others from repeating the harmful act.

The purpose of a punitive damages award is not to compensate the plaintiff but rather to punish the defendant or others who may likely adopt the same reprehensible behaviour.

In tort liability cases, for example, the following acts can qualify for punitive damages:

  • Malicious acts
  • Grossly negligent behaviour
  • Intentful misconduct 
  • Acts of wanton
  • Willful misconduct 

Gross negligence versus

In this section, let’s clear up any confusion with respect to legal terms or jargon used to describe different shades of negligence.

We will look at:

  • Gross negligence vs negligence
  • Gross negligence vs ordinary negligence
  • Gross negligence vs recklessness
  • Gross negligence vs willful misconduct 

Negligence

Negligence is a central notion in tort law.

To be negligent, it is to be careless.

To be negligent, you can consider it to be the opposite of being prudent.

When a person should have been careful, should have exercised diligence and care and failed to do so causing another person harm, financial loss or property damage is considered to be a negligent person.

Ordinary negligence 

Ordinary negligence is when a person’s conduct deviates from the conduct of a reasonable person placed in the same circumstances causing another person harm.

For example:

A classic example is when a store owner does not put up a sign to indicate that the floor is wet and a client slips and falls.
Author

When there is ordinary negligence, the person causing damages to the other did not have an intention to cause harm.

However, the action or omission resulted in damages or injuries to another nonetheless.

Recklessness

Recklessness requires that one makes a conscious choice to take an unjustified risk or act in a certain way that may cause damages or harm to another person or property.

To be reckless is to act (or fail to act) in such a way that significantly deviates from that a reasonable and prudent person would have done in the same circumstances and that such action was intentional.

Recklessness and willful misconduct are synonymous with one another.

Gross negligence can be situated between “negligence” and “recklessness”.

Willful misconduct

Willful misconduct is a step further in the negligence spectrum.

Ordinary negligence is when a person failed to exercise the standard of care that a reasonably prudent person would have adopted in a similar situation.

Gross negligence goes one step further where the conduct of the person presents a marked departure from the standard of care that a reasonably prudent person would have adopted in a similar situation.

Willful misconduct goes a step further where a person’s misbehaviour not only poses a marked departure from the standard of care that a reasonably prudent person would have exercised in a similar situation and the person’s actions or omission was intentional or deliberate.

Gross negligence example

Civil law

Civil negligence is a legal concept that applies between two private parties.

When private individuals or entities deal with a legal dispute in a civil court or civil lawsuit, they may invoke the legal theory of negligence in court to seek compensation for damages suffered.

Examples of civil lawsuits or civil negligence claims include:

  • Medical malpractice
  • Professional liability 
  • Car accidents
  • Property damages 
  • Work-related injuries 

For example:

An example of gross negligence causing harm is when a person drives at excessive speeds in a school zone.
Author
Another example of gross negligence is when a doctor does not carefully review a patient’s file and prescribes the wrong medication.
Author

Criminal law

Criminal negligence is a legal concept applicable to criminal cases.

A criminal lawsuit is instituted by the state or government against a private person as a private person cannot legally initiate criminal proceedings against another.

The trier of fact in a criminal lawsuit will evaluate the conduct of a person along with his or her level of negligence to determine if the person was criminally responsible or not.

Gross negligence FAQ

Gross Negligence FAQ

What are the 5 elements of gross negligence

In accordance with the gross negligence law and based on the preponderance of evidence, you must prove the following five elements:

  • Duty of care
  • Breach of duty of care
  • Damages 
  • Causation 
  • Extreme conduct 

What is the difference between negligence and gross negligence

Negligence is when a person acts or omits to act in such a way deviating from the standard of a reasonably prudent person in a similar situation. 

Negligence usually involves inattention or a mistake resulting in an injury to another.

Gross negligence is when a person’s conduct significantly deviates from the standard of a reasonably prudent person in a similar situation. 

Usually, there is a serious degree of negligence or there is a high level of risk that by doing or not doing something damages will be caused.

What is considered gross negligence

Gross negligence is essentially a negligent act or omission along with extreme conduct or behaviour showing a marked disregard in potentially causing harm to others.

The gross negligence standard is achieved when there is a “serious” degree of negligence.

You can define gross negligence as being extremely careless.

What is an example of gross negligence

Let’s look at two gross negligence examples.

In medical malpractice, an example of gross negligence is when a doctor does not take into consideration a patient’s allergies when prescribing medication.
Author
Another example is when a business sells a product that causes injuries or harm to the consumers.
Author

What are the 3 levels of negligence

The three levels of negligence are:

  • Negligence or ordinary negligence 
  • Gross negligence 
  • Willful misconduct or recklessness or wanton

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