- Overview of Gross Negligence
- FAQ about Gross Negligence
- Signs of Gross Negligence
- How to Prove a Negligence Claim
Overview of Gross Negligence
First, what is negligence? Negligence is an area of tort law that creates liability for people that fail to take reasonable care in avoiding injury or loss to another person. Generally, ordinary negligence occurs when someone does not act as a reasonable person would in certain circumstances. To prove negligence in court, you must show four elements: duty, breach, causation, and damages.
So, what is gross negligence? Gross negligence is like ordinary negligence in that it also projects liability onto those who do not act reasonably. However, gross negligence goes further than ordinary negligence because it only occurs when the person (defendant) acts so unreasonably that it is almost intentional. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care. Another way to define gross negligence is that it is a reckless disregard for the safety and lives of others. It is more than a simple inadvertence; it is just short of being intentionally wicked.
In a case for ordinary negligence, the plaintiff usually only receives compensatory damages. Compensatory damages are awarded to compensate a plaintiff for their losses. For example, in a personal injury case, there may be compensation for physical pain, suffering, physical impairment, mental anguish, loss wages, and medical expenses. Punitive damages are typically not available for ordinary negligence.
On the other hand, the consequences of gross negligence can be severe due to the nature of the defendant’s reckless actions. In a gross negligence lawsuit, a plaintiff can receive compensatory damages and punitive damages. Punitive damages are awarded to punish the defendant for his or her gross negligence.
FAQ about Gross Negligence
What is gross negligence?
Gross negligence is a “worse” than ordinary negligence, but it is not quite criminal. Gross negligence is tried in civil court. In Florida, to hold a party liable for gross negligence, the court must find that the defendant had knowledge of the existence of circumstances that constituted a “clear and present danger” and yet still undertook a conscious, voluntary act or omission that was likely to result in injury. In re PSN USA, Inc., 426 B.R. 916 (2010).
Gross negligence vs. negligence
This is a difficult distinction to make. One way to describe it is that the difference between gross negligence and ordinary negligence depends on the amount of lack of reasonable care by a defendant in certain circumstances. The higher lack of reasonable care (i.e. consciously disregarding the life, safety, and rights of others) is probably going to constitute gross negligence. On the other hand, an “average” lack of reasonable care is probably going to constitute ordinary negligence (i.e. the defendant is not consciously acting unreasonably).
One court explained that distinguishing between gross negligence and ordinary negligence (and other types of negligence) is analogous to separating different hues of gray as opposed to differentiating black and white. Faircloth v. Hill, 85 So. 2d 870 (1956).
Additionally, in an ordinary negligence lawsuit, punitive damages are typically not available, while in a gross negligence lawsuit, punitive damages may be available.
How much can you sue for gross negligence?
This depends on the specifics of your case. In a claim for gross negligence, a plaintiff may be awarded compensatory damages and punitive damages. The potential amount of money that you are awarded for compensatory damages depends on your injury. That is, you are “compensated” for your losses, so the amount of money you get should directly correlate to the amount that you lost.
On the other hand, punitive damages are different because it is money paid to the plaintiff by the defendant in order to “punish” the defendant. Punitive damages are not to reward the plaintiff, but to deter the defendant from repeating his or her reckless conduct. However, there are limitations to punitive damages. In Florida, there is a cap on the amount of punitive damages available in a personal injury lawsuit. Punitive damages may not exceed the greater of:
- Three times the amount of compensatory damages awarded or
- The sum of $500,000. (See the full text of the law here).
How do you defend gross negligence?
The defenses for your case may be limited or different depending on the specific facts, so it is important to discuss your case with an attorney.
Nevertheless, there are several general ways to defend against a claim of negligence:
- Negate one or more of the elements of the plaintiff’s claim (duty, breach, causation, damages):
- Duty: show that defendant did not owe a duty to the Plaintiff;
- Breach: show that even if there was a duty, defendant did not breach it;
- Causation: show that there was no causation (defendant’s conduct did not cause plaintiff’s injury); and/or
- Damages: show that the plaintiff did not suffer damages or bodily injury.
- Assert the statute of limitations as a defense, if it applies.
- Assumption of the risk: the plaintiff assumed the risk (plaintiff knew of the danger and did it anyway).
- Contributory negligence: the plaintiff’s own conduct contributed to the injury. Note that this will not completely bar the plaintiff’s recovery. He or she may still be able to recover from the defendant, but the amount of recovery may be reduced.
Signs of Gross Negligence
When you are trying to determine if your case involves gross negligence, think extremes. Gross negligence cases usually involve extreme conduct on part of the defendant. Gross negligence may often seem evil or shocking. This is because the law of gross negligence requires a person to knowingly disregard the life, safety, and rights of others.
Gross negligence often arises in the medical malpractice area. Some examples of gross negligence in medical malpractice are as follows:
- Leaving a surgical instrument inside a patient’s body;
- Amputating a thumb when the doctor was supposed to amputate a pinky finger;
- Giving a patient medication that their chart says they are allergic to.
Other examples of gross negligence are:
- A baseball player getting angry after striking out and throwing his bat hard and it hits a bystander;
- Driving 50 mph down a very steep and narrow road in the dark even after passengers warn the driver to slow down for an upcoming curve.
Remember, every case is different and just because your case is similar to one of the above examples does not mean you have a clear-cut case for gross negligence. That is why it is important to contact an attorney to discuss the specific facts of your case.
How to Prove a Negligence Claim
In any tort claim, there are elements that must be proven to the court to establish the defendant’s liability (i.e. tort liability). Negligence falls under the umbrella of tort law. Thus, in order to prove that a defendant was negligent, you must prove all four elements of negligence:
- breach of duty
You must prove all four and not just one or two of the elements.
The first element that must be proven is whether the defendant owed a “duty of care” to the plaintiff. The duty of care is a standard in tort law to act as a reasonable person. This duty of care can be owed by a person or a business. For example, landlords who owe a duty of care to those who come on the property, and business owners who owe a duty of care to those who enter the business, including employees and customers.
Breach of Duty:
The second element that must be proven is that the duty of care was breached by the defendant acting (or failing to act) in a certain way. For instance, if a landlord breaches the duty of care by failing to install handrails on a staircase, then the second element has been met.
The third element, causation, is that the plaintiff must prove that the defendant’s actions (or inaction) caused the plaintiff’s injury. In other words, the defendant must have caused the harm to occur.
Causation splits into two types:
- actual cause
- proximate cause
A plaintiff must establish both types of causation in order to prove the element of causation.
- Actual cause is exactly what it sounds like: did the defendant actually cause the harm? Actual cause is sometimes referred to as cause-in-fact.
- On the other hand, proximate cause is an extremely complex concept. Put simply, proximate cause asks whether the defendant’s actions (or inactions) caused a foreseeable consequence. Proximate cause is sometimes referred to as legal cause.
The final element of proof of negligence is damages. For this element, the plaintiff must show that he or she was injured or suffered damage as a result of the defendant’s actions (or inactions). Damages can be proven by personal injury, property damage, and in some cases, punitive damages.
A lawsuit for gross negligence tends to have very severe injuries and damages. That is why is imperative to hire a personal injury lawyer to insure you are properly compensated for your losses.
The law of negligence is very complex and can be difficult to understand. Each case has a unique set of facts that make it difficult to determine whether or not you have a solid claim of gross negligence. Let us help you make that determination easier.