Claims of Gross Negligence

Most people are familiar with the concept of negligence – a person or business disregards ordinary standards of care and as a result of this breach of duty, someone is injured. Typically, we associate traffic accidents or medical mistakes (malpractice) as negligence. The person who is negligent does not necessarily have an evil intent or intend the harm; it is the result of carelessness.

Gross Negligence

Gross negligence is an "amplification" of this behavior and it goes beyond carelessness to include reckless, unreasonable or willful misconduct by a person. It is behavior that shocks the conscience.

Examples: Negligence v. Gross Negligence

Negligence – Bob is a skiing instructor teaching a class. Bob fails to check the ski poles he gives to a student and when the pole cracks, the student suffers a painful shoulder injury. Bob immediately stops class and rushes the student for treatment.

Gross Negligence - Same facts as above except that Bob does not stop class and forces the injured student to wait until class is over to seek medical help. The waiting period aggravates a posterior labral tear.

In other words, gross negligence is a total disregard for the obligation to exercise due care and that leads to personal injury or property damage. Proving gross negligence may ratchet up the damages to be paid and may even include punitive damages (payments to punish the wrongdoer).

In Cases Where a Waiver Was Signed

One reason that gross negligence is sometimes claimed is that the injured person may have waived any rights to claim negligence. For example, a person taking a ski diving class may have signed a waiver promising not to sue over the school's negligence. However, most states will not enforce a waiver promising not to sue over gross negligence. For that reason, it is typically alleged in cases where a waiver is used.

Defenses to a Gross Negligence Claim

Keep in mind that a victim may claim gross negligence in any case where harm is caused if the victim believes you acted unreasonably. In fact, you may not have purposely intended on causing harm, but another person can still claim you were grossly negligent. These circumstances include car accidents, slip-and-fall cases, legal malpractice, and medical professional negligence. The specifics of your defense will vary based on the terms of the personal injury lawsuit. In any negligence situation (whether gross or not), your legal case will have to respond to the four factors listed below.

• Duty of care – You must prove you behaved reasonably given the circumstances of the event. Reasonable care is a term that refers to how a person with an ordinary degree of reason, social responsibility and/or care would have acted in the same situation.
• Breach of duty of care – You need to prove you did not breach a duty. Breaching a duty means you failed to exercise reasonable care to avoid injuring someone or damaging property. To not be held responsible for the damages your defense must show that you exercised a reasonable level of care.
• Causation – You must prove you did not breach your duty, and therefore negligent actions could not have caused the damages.
• Damages -- Damages are the actual physical, emotional and financial losses incurred as a result of the breach of duty. A defense against gross negligence will try to show that you should not be held responsible for the damages because you exercised reasonable duty of care.

If all of these arguments fail, your attorney will likely argue alternatively that even if there was negligence involved it was not "gross negligence."

It is important to consult an attorney promptly when persons are injured or property is damaged. If you are accused of being negligent the purported victim will seek compensation that can include both compensatory and punitive damages.