Negligence, Gross Negligence & Willful, Wanton Conduct

Ghosts in the machine & negligence

Negligence: Gears in the Machine

Failing to use reasonable care causes negligence.  But, negligence comes in degrees.  Different levels of negligence can make a difference.

Ordinary Negligence

The “reasonable person” standard requires people to conduct themselves as a reasonably careful person would under like circumstances.  Ordinary negligence occurs when someone does something that a reasonably careful person would not do under similar circumstances, or fails to do something a reasonably careful person would do.

Negligence law requires reasonable measures to protect oneself and others from harm.  The law imposes a duty of reasonable care.  Those harmed by one who breaches this duty may recover damages.

This ordinary negligence standard applies to many claims, even in catastrophic injury accident cases and defective product cases.

Gross Negligence

Gross negligence requires conduct substantially higher in magnitude than ordinary negligence.  It is very great negligence, or the absence of slight diligence, or the want of even scant care.  It amounts to indifference so far as other persons are concerned.

Courts have described gross negligence as a heedless and palpable violation of legal duty to the rights of others.  The type of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence.

A showing of gross negligence is required for example to qualify for an award of punitive damages under many wrongful death statutes.

The driver of a car was found grossly negligent for driving 50 miles an hour down a steep hill in the dark, and when passengers warned him to slow down before a curve he instead sped up causing a crash killing one passenger.  In medical malpractice, gross negligence can be found where surgeons remove the incorrect limb or leave medical instruments inside a patient after surgery.

Willful, Wanton, Reckless Conduct

Willful, wanton reckless conduct takes place a shade below actual intent.  Proof of willful, wanton, reckless conduct involves a high degree of likelihood that substantial harm will result to another.

Two things distinguish willful, wanton, reckless conduct from negligence.  First, the defendant must knowingly or intentionally disregard an unreasonable risk.  Second, the risk must entail a high degree of probability of causing substantial harm.

Those seeking to recover for their own injuries when suing a bar under “dram shop” law must prove that the licensed establishment engaged in willful, wanton, reckless conduct.

Willful, wanton, reckless conduct was found where a supervisor told an employee to clean the gears of a machine while it was running, causing permanent injury when the worker’s hand was caught in the machine.

Negligence in Degrees

Jury instructions spell out circumstances distinguishing the degrees of negligent conduct.  But, it may not be overly complicated.  As a great U.S. Supreme Court Justice once explained:

Even a dog knows the difference between being kicked and being stumbled over.

Oliver Wendell Holmes.

Minor distinctions between degrees of conduct can significantly change the outcome of a case.  The law varies state by state.  My office handles injury cases in Massachusetts & New Hampshire.  Anyone injured by any circumstances, accidental or otherwise, should retain an experienced personal injury attorney.

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About Andrew Myers

Attorney Myers is a member of the American Association For Justice, Massachusetts Academy of Trial Attorneys, New Hampshire Association For Justice, National Association of Consumer Bankruptcy Attorneys & Rotary International. Legal services provided in Massachusetts (MA) and New Hampsire (NH).

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