Understanding the Difference Between Ordinary Negligence, Gross Negligence, and Willful, Wanton, and Reckless Negligence
Defining the Degrees of Negligence and Why It Matters
Negligence in law includes a variety of conduct ranging from inattention and accidental oversights to total indifference to the safety of others.
Recognizing the scope of behavior that gives rise to negligence actions, legislatures (through statutes) and courts (through case law and jury instructions) have identified different levels of negligence.
The three types of negligence recognized in civil actions under tort law are ordinary, gross, and willful, wanton.
This article compares these degrees of negligence and explains when you may need to prove heightened (or aggravated) negligence. You may need to plead (in the complaint) and prove gross negligence or willful and wanton negligence to overcome specific legal defenses, such as sovereign immunity, or to recover punitive damages.
The Three Levels of Negligence
Courts have defined three levels of negligence to resolve issues involving immunity defenses to tort claims and awards of punitive damages: ordinary negligence, gross negligence, and willful and wanton negligence.
The difference between ordinary negligence and gross negligence is one of degree. However, the difference between these two types of negligence and causes of action for willful and wanton negligence and intentional misconduct is a matter of kind.
The following sections discuss the three levels of negligence recognized in court decisions, what these distinctions mean, and when you must prove each one.
What is Ordinary Negligence?
Ordinary negligence, also called simple negligence in some court decisions, is the first level of negligence.
A person is liable for harm caused by ordinary negligence when they fail to behave as a reasonable person would have in a similar situation to prevent harm to others.
Ordinary negligence is the easiest type of negligence to prove under the law because you need not show that the defendant meant to cause you harm. Instead, ordinary negligence describes heedlessness, inattention, and inadvertence.
Only ordinary negligence is needed to recover money in most personal injury and car accident cases, even those involving catastrophic injury such as spinal cord injury resulting in cervical or lumbar fusion and amputations.
Examples of ordinary negligence include:
- A driver runs a red light because she is texting and collides into another car resulting in traumatic brain injury (TBI).
- A grocery store sales associate fails to follow a supervisor’s instructions to put up a wet floor sign after mopping resulting in a customer slipping, falling, and hurting their back.
- A driver runs into a bicyclist in the bicycle lane because he is changing the radio and not watching the road.
- A homeowner underestimates the size of the tree he is cutting down and it falls onto the neighbor’s house, damaging the roof.
As you can see, simple negligence occurs regularly.
What is Gross Negligence?
The second level of negligence is gross negligence.
Black’s Law Dictionary 1246 (11th Ed.), the leading legal dictionary in America, defines gross negligence as:
1. A lack of even slight diligence or care … the omission of even such diligence as habitually careless and inattentive people do actually exercise in avoiding danger to their own person or property.
2. A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary [punitive] damages.
Said differently: A person is liable for gross negligence if they fail to act as even careless people would behave in a similar situation.
Many state courts use a similar definition of gross negligence.
For example, the Virginia Supreme Court says gross negligence “is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such persons.” This category includes conduct that “shocks fair-minded” people.
Whether a defendant committed gross negligence depends on the facts and circumstances of each case; there are no bright-line rules.
However, examples of conduct found to be gross negligence include:
- A driver goes 90 miles per hour through a mall parking lot during the holiday shopping season.
- A homeowner invites a neighbor’s young child he knows cannot swim into the home’s pool alone without a life vest (or flotation device).
- A doctor knows her patient is allergic to a specific medication but prescribes it.
- An orthopedic surgeon operates on the wrong leg.
This conduct – indifference to harming others – occurs less frequently than simple negligence, but still happens often.
When Must I Prove Gross Negligence Instead of Ordinary Negligence to Recover a Monetary Award?
A showing of gross negligence instead of ordinary negligence is required to recover damages in the following cases:
- When you seek to hold an individual entitled to the protection of sovereign immunity liable for harm
- When you seek to hold a city or town that operates a park, recreational facility, or playground liable for bodily injury or property damage resulting from any act or omission of any officer or agent of the city or town in maintaining or operating the property. (Virginia Code Section 15.2-1809). In this situation, you cannot recover for ordinary negligence. However, you can get compensation for gross negligence.
What is Willful and Wanton Negligence?
Willful and wanton negligence is the third and highest degree of negligence.
This degree of negligence, sometimes called advertent negligence, occurs when a defendant acts “in conscious disregard of another’s rights, or with reckless indifference to the consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.”
Put differently: A person’s conduct reaches the level of willful and wanton negligence when they know a particular act is likely to cause harm to another but do it anyway.
Courts evaluate each lawsuit alleging willful and wanton negligence on the specific acts. Indeed, no act or omission automatically counts as deliberate and wanton.
However, examples of willful and wanton negligence include:
- A drunk driver with a blood alcohol content (BAC) level three times the legal limit crashes into a pedestrian.
- A supervisor asks a laborer to operate a forklift on a construction site when the supervisor knows the machinery is defective and has injured the last three people to use it.
- A company conducts studies showing its product causes cancer in 50% of people who use it but sell it anyway.
When Must I Prove Willful and Wanton Negligence Instead of Ordinary or Gross Negligence?
In Virginia, you must prove willful and wanton negligence to:
- Receive an award of punitive damages in a negligence lawsuit. Unlike compensatory damages for actual and future losses and pain and suffering, punitive damages punish the defendant intending to prevent similar wrongdoing. These damages need not relate to your actual harm and provide extra money.
- Win a claim when you are guilty of contributory negligence (only in Virginia and a handful of states that do not use comparative negligence). Ordinarily, contributory negligence is a total bar to recovering in a negligence action.
What is the Difference Between Willful and Wanton Negligence and Intentional Torts?
Similarities exist between causes of action for willful and wanton negligence and intentional torts such as assault, battery, and false imprisonment.
The critical difference between these claims is whether a person intends to cause harm.
A court will find a person liable for an intentional tort if the person intended to harm the plaintiff.
In contrast, a court will find a person responsible for willful and wanton negligence if they intended the act and knew it could cause injury to another but did not mean to cause the damage.
We Help Accident Victims Recover for All Types of Negligence
Many acts and omissions count as negligence.
But not all negligent acts give you a legal remedy.
In summary:
- Ordinary negligence = carelessness
- Gross negligence = indifference
- Willful and wanton negligence = acting despite knowing there is a significant risk that the behavior will harm someone else or cause property damage
And what you must show depends on the defendant.
You can figure out what you must plead and prove to win a negligence action, hoping you don’t make a mistake that costs you tens of thousands of dollars or more.
Or you can call a top-rated personal injury attorney to handle this for you while you recover physically and mentally.
Contact us today to start the path to recovery.
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