California law defines gross negligence as injuring someone through extreme disregard. In contrast, ordinary negligence is causing injury by failing to act with reasonable caution.
Gross negligence is therefore more serious than ordinary negligence, but not as serious as recklessness or intentional acts.
The following bubble graph shows circumstances that could qualify as gross negligence depending on the case:
To help you better understand the law, our California personal injury lawyers will discuss:
Ordinary vs. Gross Negligence
To prove a defendant acted with gross negligence, you first have the burden to prove by a preponderance of the evidence the same four elements as ordinary negligence:
- The defendant had a duty of care;
- The defendant breached that duty;
- The breach caused your injuries; and
- Those injuries resulted in damages.
Then, you would have to prove that the defendant’s conduct was “extreme.” According to California Jury Instruction “CACI” 425, this “extreme” conduct is what separates ordinary from gross negligence.1
Example: During a routine maintenance check, an amusement park ride operator does not notice that a bolt has come loose. This lack of care is most likely ordinary negligence. Though if the employee did not bother to conduct a scheduled inspection at all, a jury might find that the failure to do so constituted gross negligence.
Amusement park operators are not immune from gross negligence claims in California courts.
When Gross Negligence Applies
In California, you can sue for gross negligence when you are barred from suing for ordinary negligence. This happens in two situations:
- a statute prohibits you from bringing an ordinary negligence lawsuit; or
- you signed away your right to bring an ordinary negligence lawsuit in a liability waiver.
Therefore, if a statute or liability waiver prevents you from suing for ordinary negligence, you can still try to sue for gross negligence.2
Damage Caps
Damages for gross negligence cannot be capped in California. Compensatory damages you can seek in gross negligence cases include:
- Economic damages, such as medical bills, lost wages and earning potential, and property repairs.
- Non-economic damages, such as pain and suffering and emotional distress.
In rare cases, the court may also award you punitive damages if you can show that the defendant acted with malice, fraud, or oppression.
Defenses
Defendants sued for gross negligence may try to fight the allegations by claiming that:
- They owed you no duty of care;
- You assumed the risk of getting injured;
- Their behavior may have been negligent, but not grossly negligent; and/or
- You were partly or all to blame.
Note that California’s comparative negligence law allows you to recover damages even if you were partly to blame for your injuries. Your damages would just be reduced in proportion to your degree of fault.
Good Samaritans administering CPR in California can be sued if their conduct amounts to gross negligence.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Reflections on Willful, Wanton, Reckless, and Gross Negligence – Louisiana Law Review.
- An Analysis of Gross Negligence – Marquette Law Review.
- Torts – Gross Negligence – Overview by Boston University Law Review.
- Gross Negligence – In-depth discussion by Washington Law Review.
- High Care and Gross Negligence – Analysis by American Law Review.
If you are interested in gross negligence in criminal law, you may wish to review our article on “California’s Legal Definition of Criminal Negligence.”
Legal References:
- California Civil Jury Instructions (CACI) 425 (“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or by failing to act.”). City of Santa Barbara v. Superior Court (California Supreme Court, 2007) 41 Cal.4th 747. See also Joshi v. Fitness Internat. LLC (Cal.App. 2022) ; People v. Doane (Cal.App., 2021) . Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960; see also Board of Registered Nursing v. Superior Court, (2021) 59 Cal. App. 5th 1011; see also People v. Maxwell, (2020) 58 Cal. App. 5th 546. See CACI 451, Affırmative Defense—Contractual Assumption of Risk. See Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072; Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349. Jimenez v. 24 Hour Fitness USA, Inc, (2015) 237 Cal.App.4th 456. Rosencrans v. Dover Images, Ltd, supra. Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11 (Example of gross negligence: An event management company organizing a half-marathon event failed to provide adequate EMS services. This may have caused one of the runners to die after he suffered a cardiac arrest at the finish line.). Decker v. City of Imperial Beach, supra. (Not an example of gross negligence: A fire chief did not let a firefighter attempt a surf rescue because the fire chief had no reason to believe the firefighter was experienced in surf rescues. Even though the victim died, the fire chief’s decision was not an extreme departure from the duty of care.). Wright v. City of L.A., (1990) 219 Cal. App. 3d 318 (Example of gross negligence: A paramedic failed to check the pulse and blood pressure of a patient in a sickle cell crisis. Had the paramedic done so, they would have found symptoms for shock and then treated the patient for it. Instead, the patient died.) Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632 (Example of gross negligence: A gym failed to perform regular preventative maintenance. This resulted in a back panel falling on a gym patron due to a missing bracket that was designed to hold the patron’s back panel in place.). Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867 (Not an example of gross negligence: The tile floor of a shower in a fitness health club was soapy, causing a patron to slip and break his arm. The shower had no handrails, shower mats, or friction strips. These conditions did not constitute “an extreme departure from safety standards,” and the club did not conceal “a known dangerous condition.”).
- Eriksson v. Nunnink (2015) 233 Cal.App.4th 708. California Civil Code § 2175. California Government Code § 831.7(c)(1). California Civil Code 1714.2 (b). City of Santa Barbara v. Superior Court, supra. See also California Civil Code section 1668.