Most personal injury cases, even serious ones, involve claims relating to ordinary negligence. However, there are some types of negligence that go beyond what the law establishes as ordinary. Such negligence is known as gross negligence. The definition of gross negligence varies by state so it is important to seek the interpretation of the law in your local area.
In Illinois, the initial elements to establish gross negligence are the same. A plaintiff must establish:
1. The defendant owed a duty to the plaintiff;
2. The defendant breached that duty;
3. The actions or omissions of the defendant was the actual and proximate cause of the plaintiff’s injuries; and
4. Damages are incurred from the injuries.
In Illinois, a plaintiff alleging gross negligence needs to also establish that the plaintiff was reckless in their acts or omissions, as opposed to ordinary negligence which requires the plaintiff establish that the defendant did not exercise ordinary care. Recklessness is still below intention that would make the action an intentional tort, but there has to be an extreme amount of negligence such that a defendant totally disregarded a duty to exercise ordinary care.
In many instances where personal injury suits can possibly occur, like extreme sports, participants are asked to sign a waiver to excuse a person or establishment for gross negligence. Courts are hesitant to enforce such contracts as in many instances a plaintiff waived more rights than intended. It is heavily based on the facts of each case as to whether such a waiver will be enforced.
Contract law is also a place where many institutions protect themselves in clauses for all negligence except gross negligence. It is considered a standard part of most business contracts and an attorney is recommended to review such clauses.
There are defenses for every element of a gross negligence defense. Some elements are easier than others to dispute. Common defenses include disputing a breach of duty, disputing causation, or disputing the resulting damages. With a gross negligence claim, a defendant can dispute the recklessness element. If such a defense is successful, a plaintiff may have the opportunity to continue with a claim for ordinary negligence instead.
In some states gross negligence may subject a defendant to punitive damages. Punitive damages act to punish a defendant for conduct that is particularly outrageous and that goes beyond ordinary carelessness to be truly reprehensible. Being able to establish this claim can dramatically increase award damages for plaintiffs. Punitive damages are also in addition to compensatory damages like pain and suffering, medical bills, lost wages, and emotional distress.
Gross negligence may also be available for criminal prosecutions. Each state defines its criminal gross negligence differently. Because of the nature of the criminal process there may be a higher burden to establish such negligence against a criminal defendant.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases. Consult an attorney in your area for further guidance. If you were injured in an accident involving an air carrier please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529