Gross Negligence Definition Law Elements Defense

What is Gross Negligence?

Ordinary negligence — an unintentional tort — consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. Gross negligence long has been defined in California and other jurisdictions as either a want of even scant care or an extreme departure from the ordinary standard of conduct. City of Santa Barbara v. Superior Court, 41 Cal. 4th 747.

By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton negligence” ’) describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” (City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations omitted.)

Gross negligence has been said to mean the want of even scant care or an extreme departure from the ordinary standard of conduct.” (Van Meter v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594.

Pleading Complaint

California does not recognize a distinct cause of action for ‘gross negligence’ independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120 Cal.Rptr.3d 90].)

Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant. Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.

Gross Negligence Elements

Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for gross negligence the plaintiff must also allege conduct by the defendant involving either want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. Chavez v. 24 Hour Fitness USA, Inc., 238 Cal. App. 4th 632.

1. That [name of defendant] was negligent;
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s negligence was a substantial factor in
4. Causing [name of plaintiff]’s harm.

Burden Shifting

If a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence refuting the allegations constituting gross negligence. Anderson v. Fitness Internat., LLC, 4 Cal. App. 5th 867.

Duty to Plaintiff

Where plaintiffs allege that a defendant’s conduct fell outside the scope of a release agreement, a detailed analysis of the scope of a defendant’s duty is necessary. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 25 Cal. App. 5th 344.

Expert Witness

Courts must be cautious where an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion. This is particularly true in the context of assumption of risk where the facts are not in dispute. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 25 Cal. App. 5th 344

Professional Immunity

The Legislature has enacted numerous statutes . . . which provide immunity to persons providing emergency assistance except when there is gross negligence.

• (Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of nurse’s employment unless the nurse is grossly negligent];

• Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on- call in a hospital emergency room who in good faith renders emergency obstetrical services unless the physician was grossly negligent, reckless, or committed willful misconduct];

• Bus. & Prof. Code, § 2398 [immunity for licensed physician who in good faith and without compensation renders voluntary emergency medical assistance to a participant in a community college or high school athletic event for an injury suffered in the course of that event unless the physician was grossly negligent];

• Bus. & Prof. Code, § 3706 [immunity for certified respiratory therapist who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of employment unless the respiratory therapist was grossly negligent];

• Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health technician who in good faith renders emergency animal health care at the scene of an emergency unless the animal health technician was grossly negligent];

• Civ. Code, § 1714.2 [immunity to a person who has completed a basic cardiopulmonary resuscitation course for cardiopulmonary resuscitation and emergency cardiac care who in good faith renders emergency cardiopulmonary resuscitation at the scene of an emergency unless the individual was grossly negligent];

• Health & Saf. Code, § 1799.105 [immunity for poison control center personnel who in good faith provide emergency information and advice unless they are grossly negligent];

• Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or other law enforcement officer who in good faith renders emergency medical services at the scene of an emergency unless the officer was grossly negligent];

• Health & Saf. Code, § 1799.107 [immunity for public entity and emergency rescue personnel acting in good faith within the scope of their employment unless they were grossly negligent].)” (Decker, supra, 209 Cal.App.3d at pp. 356-357.)

“The jury here was instructed: ‘It is the duty of one who undertakes to perform the services of a police officer or paramedic to have the knowledge and skills ordinarily possessed and to exercise the care and skill ordinarily used in like cases by police officers or paramedics in the same or similar locality and under similar circumstances. A failure to perform such duty is negligence. [para.] The standard to be applied in this case is gross negligence. The term gross negligence means the failure to provide even scant care or an extreme departure from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219 Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under Health & Saf. Code, § 1799.106, which provides that a police officer or paramedic who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or not performed in good faith].)

Summary Judgement

Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence, but not always. Where the evidence on summary judgment fails to demonstrate a triable issue of material fact, the existence of gross negligence can be resolved as a matter of law. Anderson v. Fitness Internat., LLC, 4 Cal. App. 5th 867.

Punitive Damages

The loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. The law of punitive damages remains a separate consideration. Li v. Yellow Cab Co., 13 Cal. 3d 804.

Defenses

• Waiver of Liability / Waiver of Negligence

In cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. Evidence of conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard also could demonstrate gross negligence. Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.” (Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881.

In assessing where on the spectrum a particular negligent act falls, ‘ “[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.” ’ ” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 32

Public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41 Cal.4th at p. 77.

• Assumption of Risk

A release of future liability is appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case. Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he or she cannot be charged with negligence. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 25 Cal. App. 5th 344.

• Athletic & Recreational Activities

Each person who participates in the sport of snow skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, 25 Cal. App. 5th 344.

• Contract Exculpatory Clauses

An agreement made in the contexts of recreational programs and services, which releases liability for future negligence, is enforceable. However, such an agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable. Civ. Code, § 1668, generally embodies the principle that such contracts are against public policy. The distinction between ordinary and gross negligence reflects a rule of policy that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary. The case law has not recognized a separate cause of action for gross negligence. Since California’s adoption of the comparative fault doctrine, there typically has been no need to distinguish gross negligence from ordinary negligence because fact finders can compare the respective fault of the parties. However, in certain limited contexts, such as where a release of liability for negligence has been signed for sports or recreational programs and services, the legal distinction between ordinary negligence and gross negligence continues to be necessary because, if supported by evidence showing the existence of a triable issue, the theory of gross negligence would be the only negligence-based theory that is potentially open to a plaintiff. Anderson v. Fitness Internat., LLC, 4 Cal. App. 5th 867.

• Contributory Negligence
  

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm. Li v. Yellow Cab Co., 13 Cal. 3d 804

Except where the defendant has the last clear chance, the plaintiff’s contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him. Li v. Yellow Cab Co., 13 Cal. 3d 804.

• Apportionment of Fault

The “all-or-nothing” rule of contributory negligence as it presently exists in this state should be and is herewith superseded by a system of “pure” comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties. Therefore, in all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.