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What is the difference between ordinary negligence and gross negligence?

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In a personal injury case what is the difference between ordinary negligence and gross negligence?

What are some examples? How does a judge or a jury determine gross negligence and ordinary negligence? What are some things that proves a defendant to be gross negligence? How would a lawyer prove ordinary negligence or gross negligence in a case? Is gross negligence more difficult to prove than ordinary negligence?

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Attorney answers 3


Negligence is a careless mistake. Gross negligence is wilfull, wanton and reckless, bordering a thin hair's breadth away from intentional conduct.

The best example was given by a famous U.S. Supreme Court judge many years ago: even a dog knows the difference between being tripped over and being kicked.

[Opposing counsel, the judge and I worked together on a jury instruction that we could all live with and that would be "appeal-proof." While our language was a bit more flowery, this is what it boiled down to. Your attorney and judge will do the same based on the facts of your case.]

This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.


Gross negligence in most states is considered to be a "conscious and voluntary disregard of the need to use reasonable care." As in the individual did not care if anyone was going to get hurt, like speeding down a residential street at 60 mph. Negligence is a mere failure to exercise reasonable care, like not paying attention while driving.

This is an important distinction because a finding of gross negligence will pre-empt certain defenses, like contributory negligence.

NOTE: This answer is made available by an attorney licensed to practice in the state of California. The communication is intended for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding.


In addition to the fine answers already provided, frequently people look to find out about "gross negligence" when trying to see if they are able to sue their employer in addition to the benefits available under Workers' Compensation. You should check with a local New York Personal Injury Attorney to get a free initial consultation. Good luck.

-Jeffrey M. Donato, Esq., Bohemia, NY

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