When laws discuss levels of severity in certain actions, they often discuss those actions in terms of levels of misconduct. The three levels of misconduct most often cited are ordinary negligence, willful misconduct, and gross negligence.
Ordinary negligence is quite different from the other two levels of misconduct, as it typically involves an unintentional oversight that causes an individual to breach the duty of care that they owe to another. The differences between the other two types of misconduct are more nuanced and tend to arise in insurance or indemnity agreements.
If you are wondering what the difference is between intentional misconduct and gross negligence, read on for more information.
Actions of ordinary negligence are held to the standard of care of a reasonable person. That is, they are compared to the average individual acting in an expected way in a particular circumstance. For example, all licensed drivers in a particular state are held to the standard of care of a reasonable driver for that state.
If their actions fall below those expected in accordance with the laws of that state, such as texting while driving or putting on makeup while driving, they have breached the standard of care of a reasonable person and are acting negligently. While acts of ordinary negligence are in violation of reasonable behavior, they do not rise to the level of gross negligence.
Examples of ordinary negligence include:
- A driver who runs a red light, causing an accident and injury to another driver.
- A distracted driver who is texting behind the wheel and fails to break in response to the driver ahead of him, rear-ends the car in front of them, and causes injuries to the person they hit.
- A store owner fails to put up a “Wet Floor” sign after mopping up a spill and a customer slips and falls, causing an injury.
So what is gross negligence then?
Black’s Law Dictionary broadly defines gross negligence as a severe degree of negligence taken as reckless disregard for the safety of others. It goes further to describe a blatant indifference to one’s legal duty, other’s safety, or their rights.
While there is no universally recognized legal definition, most available definitions involve a higher degree of negligence that involves blatant disregard for the safety of others. If a case involves evidence of this degree of negligence, the plaintiff may be entitled to an additional award of punitive damages.
Examples of gross negligence include:
- A doctor prescribing medicine to a patient which happens to be on the list of medications that the patient is allergic to.
- A driver speeding in a school zone, striking and injuring or killing children.
- A nursing home failed to provide a patient with food or water for several days because they did not track that patient’s care.
So what is intentional misconduct? Intentional, or willful misconduct occurs when an individual is aware of the potential consequences of their actions injuring another and does not adjust their behavior to avoid this potential consequence. They willfully make a choice to continue acting in a manner that has the potential to cause injury to others.
An example of willful misconduct would be a nightclub owner filling his premises over the capacity cited by the fire code, causing guests to be injured in a minor fire that broke out in the club when they could not readily exit the premises. The nightclub owner was aware of the potential danger of an injury occurring if the club was filled above capacity yet proceeded to engage in the behavior.
This disregard for the safety of others goes beyond gross negligence, as the owner was aware of the potential consequences of his actions and decided to ignore the danger. Unfortunately, incidents such as this are common in injury or wrongful death cases. If a plaintiff is able to establish willful misconduct as a part of their case, a jury may be willing to award punitive damages.
What Are Punitive Damages?
The majority of personal injury lawsuits seek compensation on behalf of the plaintiff for medical bills they have incurred as a result of their accident, or lost wages caused by having to be out of work recovering from the accident. They may also include a claim for pain and suffering caused by the incident. The goal of these types of damages is to help make the plaintiff whole again after their accident.
Punitive damages serve a very different purpose. These damages may be incorporated in a jury verdict as a way to punish the defendant for their gross negligence or intentional misconduct. The theory behind incorporating these damages is to deter the defendant from engaging in the same behavior in the future and to deter others from engaging in the same behavior.
In order to be awarded punitive damages, the plaintiff in a case must present “clear and convincing” evidence that the defendant engaged in grossly negligent or willful misconduct. If awarded, these damages are offered in excess of the reward that the plaintiff is granted for compensation of their expenses incurred in relation to the accident. These damages are rarely awarded in a case, as the burden of proof that must be met in establishing behavior above ordinary negligence is so high.
How Do You Prove Negligence in a Personal Injury Case?
In order to establish a prima facie case for negligence, a plaintiff must prove four elements:
- Duty – The defendant legally owed them a duty to take reasonable care to protect the plaintiff from harm under the circumstances.
- Breach – The defendant breached the duty of care with their actions.
- Causation – The actions or omissions of the defendant caused the plaintiff’s injury. If it can be determined that the type of harm that befell the plaintiff could reasonably be foreseen as stemming from the actions of the defendant, the element of causation is satisfied.
- Harm – Harm is the total amount of damages that the plaintiff has suffered in relation to the accident. These damages may include property damage, medical bills, lost wages, etc.
If the plaintiff is able to establish each of these four elements, they may have a valid claim for personal injury and can bring a lawsuit in order to be compensated for their damages. Cases involving gross negligence or willful misconduct require a higher burden of proof to establish that the defendant’s behavior went beyond ordinary negligence.
If the jury feels that a strong enough case has been established for this type of misconduct, they may award punitive damages to the plaintiff to punish the defendant and deter them from engaging in this behavior in the future.
How Carey Leisure & Neal Can Help in Pursuing Your Negligence Claim
If you have been injured in an accident and would like to pursue a claim of negligence against another for having caused those injuries, call Carey Leisure & Neal for a free consultation today. With over 100+ years of combined experience between our attorneys, our team will be able to help you establish a strong case to be compensated for your injuries.
The creative team understands the higher burden of proof to establish a case of gross negligence and willful misconduct and will be able to frame your case in a way that may establish these levels of misconduct in the defendant’s actions. If you have been injured in an accident and are wondering what the difference is between intentional misconduct and gross negligence, call our team for a free consultation today.