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.
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.
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:
As you can see, simple negligence occurs regularly.
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:
This conduct – indifference to harming others – occurs less frequently than simple negligence, but still happens often.
A showing of gross negligence instead of ordinary negligence is required to recover damages in the following cases:
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:
In Virginia, you must prove willful and wanton negligence to:
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.
Many acts and omissions count as negligence.
But not all negligent acts give you a legal remedy.
In summary:
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.