Gross Negligence & Recklessness in Los Angeles Personal Injury Cases
What happens when the person or entity responsible for your injury was more than merely careless but was grossly or recklessly careless? Does this change your personal injury case against the person or entity? And if so, how does the defendant’s gross negligence or recklessness change matters?
In California, when there’s a personal injury, the State recognizes the difference between negligence, gross negligence, and recklessness in unintentional tort cases. Gross negligence and recklessness carry higher degrees of culpability than negligence. These torts result from acts that are more than a mere failure to be cautious. Because of the higher degrees of culpability, a victim in California has a better chance of obtaining punitive damages in addition to compensatory damages. That means a better and more just award.
Below is a brief discussion on gross negligence and recklessness as they relate to personal injury cases in California. After reviewing it, contact us if you have questions about your own case or want to start a personal injury claim in the Los Angeles area. We connect you with a personal injury lawyer possessing the skills, knowledge, and insight you need to receive the best possible outcome in your case.
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What’s the Difference Between Negligence, Gross Negligence, and Recklessness?
A person is negligent when the person fails to act in a way a reasonably prudent person would under the same circumstances. An easy example is a driver of a passenger vehicle. Careful drivers come to a full stop at stop signs. A negligent driver, however, may perform what’s frequently called a “California stop” where a driver only slows down but doesn’t stop. This is not prudent and can result in an auto accident when the driver can’t stop in time and there’s another car coming. This, however, is neither gross negligence nor recklessness.
Gross Negligence
Gross negligence occurs in California when the wrongdoer fails to prevent harm to another person by:
- acting (or failing to act) without any care or prudence;
- acting (or failing to act) in a way that is an extreme departure from an ordinary standard of conduct; or
- failing to provide care at the level that even a careless person would provide.
California does not have a definition that clearly distinguishes when ordinary negligence becomes gross negligence. Gross negligence is negligence that lands somewhere between ordinary negligence and recklessness. Gross negligence typically becomes a factor in personal injury cases when either:
1. A statute specifically allocates liability for gross negligence; or
2. A person assumes the risk of ordinary negligence by agreement but the negligence was more than ordinary.
Gross negligence is also a higher standard to prove than mere negligence. This is important because some people or entities may be allowed to protect themselves against ordinary negligence, but in California, they are never allowed to be protected from gross negligence.
For example, if you go on a jet ski/boat trip in Los Angeles, you may be asked to sign a waiver so that, if you are injured, the tour company is not responsible for your injuries. So, you sign the waiver. The tour guide inspects the boat but fails to identify a loose screw and while on the jet skis, the screw comes loose, causing you to endure an accident and sustain injuries. The tour company would not be liable for your boating accident unless you can show that, in fact, the company failed to inspect the boat and jet skis as required. Failing to inspect when required to do so is an extreme departure from what a jet ski or boating company in the same situation would reasonably do. As such, the tour company could be liable and responsible to pay damages even though you signed a waiver and assumed the risk of injury.
California laws actually prevent a number of people or entities from protecting themselves from liability when gross negligence is present. For example, the following are not protected from liability in gross negligence claims:
- Red Cross certified CPR holders who provide CPR in emergency scenarios (California Civil Code 1714.2 (b));
- Common carriers, like airplane companies, taxi drivers, and bus drivers (California Civil Code § 2175)
- Governmental entities with hazardous recreational activities on-site (California Government Code § 831.7(c)(1));
- Non-governmental entities with hazardous recreational activities on-site.
Hazardous recreational activities are activities where accidents have been known to occur. Examples include things like:
- Swimming;
- Skiing;
- Racing;
- Scuba diving;
- Horseback riding;
- other.
Gross Negligence
Recklessness is a higher degree of culpability than gross negligence but does not rise to the level of intentional torts. In California, recklessness has two basic elements:
1. the wrongdoer knew his or her conduct was highly likely to cause harm to another person; and
2. knowingly did it anyway.
Unlike negligence and even gross negligence, recklessness involves a conscious choice to take a certain action knowing it could seriously endanger others.
For example, returning to the jet ski/boating company situation, imagine that the guide knew that screws to the jet ski equipment were loose. As the guide, he knew that the loose screws were highly likely to fall off during a trip, and if they did, an injury was also likely to result. Nonetheless, the guide went ahead with the jet ski trip without inspecting and without securing the screws. This could be interpreted as recklessness.
To recap. In the jet ski examples, the guide would have acted:
- Negligently if he inspected the jet ski equipment but failed to do an adequate enough job to discover the loose screws;
- Grossly negligent if he failed to inspect the jet ski equipment as required; or
- Recklessly if he knew about the loose screws and knew someone could get injured but went ahead with the jet ski trip anyway.
Like with gross negligence, a person cannot assume the risk of injury or waive liability if the act or omission to act exceeds ordinary negligence. When a person assumes the risk of an injury, he or she is liable for their own injury even if another person is at fault. In the case of recklessness, you cannot lawfully assume the risk.
For example, consider a person who takes horseback riding lessons. You will be asked to sign a waiver, effectively assuming the risk of injury. Your trainer takes you through your first lesson as he or she should, but you fall off the horse. You are liable for the costs of medical treatment. On the other hand, if the trainer makes you trot through rough terrain, knowing it is dangerous, and you fall off the horse and sustain a brain injury, you may not be responsible for this injury. When you signed up for lessons, the trainer should build your skill level and not take you on tough terrain without you knowing how to work a horse. This could be considered reckless on the side of the trainer, and you could win your personal injury claim.
What Damages are Awarded in Los Angeles for Personal Injury Cases Based on Gross Negligence or Recklessness?
In personal injury cases involving gross negligence or recklessness, you are entitled to the same compensatory damages you can demand in any other personal injury case. Compensatory damages include both economic (e.g., medical expenses, lost wages, loss of earning capacity, out-of-pocket expenses) and non-economic (e.g., pain and suffering, mental anguish, loss of enjoyment, among other losses). You are also in a better position to seek punitive damages. In California, punitive damages, also referred to as exemplary damages, can be awarded when the defendant acted maliciously, oppressively, or fraudulently. According to Civil Code § 3294,
(1)“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Clear and convincing evidence is needed to show malice, oppression, or fraud. To note, the definition of malice is similar to recklessness, and so in many if not most personal injury cases involving recklessness, punitive damages can successfully be sought.
Get Help with Your Personal Injury Claim in Los Angeles Today
Claims for a personal injury caused by gross negligence or recklessness should always be pursued. Never settle with the at-fault party or its insurance company without first consulting with an attorney, or else you may miss out on the additional exemplary damages you can seek. An insurance company, in these types of situations, may be more willing to settle with you knowing you may not be aware of the possibility of exemplary damages. Don’t settle unless it is in your best interest. The personal injury attorney we find for you in Los Angeles will always have your interests first. Contact us today to get started on your personal injury case.
