Gross Negligence and Punitive Damages In Personal Injury Cases

Gross negligence in a civil injury case implies the defendant was not simply careless, but reckless.

By , J.D.

"Negligence" governs most personal injury cases arising from accidents (from car crashes to medical mistakes), but when something more than run-of-the-mill carelessness leads to an injury, there may be "gross negligence," and the potential for punitive damages.

  • The definition of "gross negligence" varies from state to state, but this degree of fault is always considered above and beyond ordinary negligence.
  • Practically speaking, the need to prove gross negligence comes up most often when the injured person (the plaintiff) is seeking punitive damages, or when the plaintiff signed a waiver before their injury.
  • Claiming gross negligence isn't enough; the injured person has the burden of showing that the defendant's conduct rose to the level of what's required under state law.

What Is Negligence?

The legal concept of "negligence" is used to figure out whether a person (or a business or other entity) was careless in connection with an incident, so that they should be held liable for resulting injuries and other harm.

In simple terms, negligence occurs when one person's failure to act with reasonable care ends up causing harm to someone else. Think of a driver who isn't paying enough attention to the road and makes an unsafe left turn, causing an accident.

What Is Gross Negligence?

The definition varies from state to state, but gross negligence usually involves conduct that is reckless or that might be considered "extreme" negligence. While ordinary negligence involves the violation of a general duty to act with reasonable care, with gross negligence there are usually added elements like:

  • near-complete disregard for other people's safety, and/or
  • conduct that is extremely risky.

Example of Negligence Versus Gross Negligence

A business may be liable for negligence for failing to fix an old roof that later collapses and hurts customers. But let's say a building inspector informed the business that the roof must be fixed due to its dangerous condition, and the business was ordered to keep that part of the building closed to the public in the meantime. The business ignores this mandate, and the roof collapses three months later, injuring customers. In that case, the business may be liable for gross negligence. The business knew of the roof's condition and consciously disregarded its customers' safety.

State Definitions of Gross Negligence

As mentioned above, different states define "gross negligence" in different ways. Let's look at a few examples.

In California civil lawsuits, gross negligence is defined as "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 someone else.

In Florida, when a plaintiff is seeking punitive damages in a lawsuit, gross negligence is defined as conduct that is "so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."

Under Texas law, gross negligence requires that the defendant have "actual awareness" of "an extreme degree of risk, considering the probability and magnitude of the potential harm to others," and proceeds with "conscious indifference" to the safety of others.

Punitive Damages Are Often Tied to Gross Negligence

In the realm of personal injury law, damages are usually awarded to compensate an injured person for the harm caused by the defendant's actions. For example, suppose Tom was injured in a car accident where the other driver (Marcus) was at fault. Tom can recover damages for permanent lost mobility in his arm, for missing two months of work, for his medical expenses, and for his non-economic damages like "pain and suffering." Tom's damages would be awarded based on the money he lost as a result of Marcus's actions, and based on the negative impact the accident has had on his life.

Unlike regular (or "compensatory") damages like those Tom received in our example above, punitive damages are meant to punish the defendant, and are not directly tied to a tangible injury. They're not technically meant to compensate the plaintiff for a specific loss—although in any kind of personal injury case where they're awarded, the plaintiff is the one who ends up receiving punitive damages from the defendant.

So, when will punitive damages be possible? In some states, an award of punitive damages requires a showing of intentional misconduct. Other states require a defendant to act with recklessness, malice or deceit. But in most states, "gross negligence" is a common factor said to justify punitive damages.

For example, Florida's statutory definition of gross negligence (discussed above) is included in a state law that establishes when a defendant might be ordered to pay punitive damages.

How Do Liability Waivers Impact Gross Negligence Claims?

Gross negligence often comes up when the plaintiff in a personal injury case might have waived any right to claim negligence against the defendant. For example, someone who signs up for a ski lesson might be asked to sign a waiver of the right to sue the resort or the company that provides the lessons. But most states will not enforce a waiver promising not to sue over gross negligence. So, if the injured person can prove that the defendant's conduct rose above and beyond ordinary negligence, the waiver can be overcome.

Are There Defenses to a Gross Negligence Claim?

There are defenses to a gross negligence claim, but there might be better ways of looking at this issue. One thing to keep in mind is that the plaintiff in a personal injury lawsuit might be able to claim that their injury came about as a result of the defendant's gross negligence—as part of a request for punitive damages, for example—but they'll still need to prove their case. That means showing (through the presentation of evidence and testimony) that the defendant's actions (or failure to act) meets the state's definition of gross negligence.

Technically speaking, a somewhat simple "defense" to expect in the face of a gross negligence claim is the argument that, while the defendant's conduct might have amounted to ordinary negligence, the plaintiff has simply failed to establish that the conduct rose to the level of gross negligence, as state law defines it. Remember, the plaintiff has the burden of proof in a personal injury lawsuit, meaning they must produce evidence establishing all of the elements of all of the claims included in their lawsuit in order to win the case.

Gross Negligence In Lawsuits Versus Settlements

As we've discussed, the plaintiff in a personal injury lawsuit can claim (and must prove) that a defendant's conduct amounted to gross negligence. In some states, there must be a reasonable basis for an injured person to seek punitive damages. Where there is limited or no evidence of intentional misconduct or gross negligence, the plaintiff and their attorney could face sanctions for seeking punitive damages.

In the context of a personal injury settlement, a valid allegation of gross negligence can certainly motivate a defendant to settle, and can lead to a higher settlement amount. But it's rare for a personal injury settlement agreement to spell out the defendant's liability for gross negligence, especially since admissions of fault are generally left out of any written agreement.

Getting Help After an Injury

When you've been injured, the last thing you want to worry about is whether the at-fault party's conduct meets a statutory definition that's heavy on the legalese. Whether or not your injury was the result of ordinary or gross negligence, having an experienced legal professional on your side can be crucial to getting the best result.

Learn more about how a personal injury lawyer can help you, and get tips on finding the right injury lawyer for you and your case. You can also use the features right on this page to connect with an injury lawyer near you.

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