Ordinary Negligence vs. Gross Negligence: What’s the Difference?

Negligence is a legal term of art that roughly means “carelessness.” If someone carelessly injures you, you might qualify for compensation from them, their insurance company, or a third party such as their employer. Florida, however, recognizes two different forms of negligence—ordinary negligence and gross negligence.

What is ordinary negligence?

Ordinary negligence occurs when someone fails to act with reasonable care. The law is more specific, however. To prove ordinary negligence in Florida, you must show four key elements (duty of care, breach of duty, causation–both actual and proximate– and damages):

1. Duty of care: The defendant owed you a duty of care. Every mentally competent adult owes everyone else a duty of reasonable care. Your doctor, on the other hand, owes you a professional duty of care.
2. Breach of duty: The defendant failed to meet their duty of care toward you. They might do something careless, like run a red light, or fail to do something, like a doctor who fails to order blood tests for a patient.
3. Cause: You have the burden to prove the at fault party’s breach of their duty of care caused your damage. You can prove actual cause by proving that, absent the defendant’s negligence, the harm you suffered would never have occurred. If the defendant had not left the grease on the floor, for example, your slip and fall accident would never have occurred.
4. Proximate cause: To establish proximate cause, you must prove that the harm you suffered was a foreseeable consequence of the defendant’s negligence. The key word here is foreseeable. Unforeseeable harm (think of freak accidents) may not generate liability.
5. Damages: You suffered harm that can translate into a certain amount of money. Florida courts can place a dollar value on even intangible harm such as pain and suffering. In fact, intangible damages often add up to the lion’s share of a personal injury settlement.

You must prove each one of these elements of ordinary negligence by “the greater weight of the evidence.” The greater weight simply means the more persuasive and convincing force and effect of the entire evidence in the case. And more simply it means a greater than 50% likelihood that the element is present. If you establish a 51% chance that the defendant failed to meet their duty of care, for example, you have proven the breach of duty element of your personal injury claim.

What is gross negligence?

Gross negligence is an extreme form of negligence. You commit ordinary negligence if you forget to exercise ordinary care. You commit gross negligence if you exhibit a conscious and voluntary disregard of the need to use reasonable care. Driving while intoxicated is the classic example, but there are many other possible ways to commit gross negligence.

Contrast: Intentional misconduct

An example of ordinary negligence might mean running a red light while fiddling with your car radio. Gross negligence might mean going for a ride after consuming a bottle of whiskey. Intentional misconduct would include, for example, a road rage “accident” where you intentionally cause a crash with full understanding of the wrongfulness of your conduct. You don’t have to specifically intend the injury when you commit intentional misconduct.

Gross negligence and punitive damages

Punitive damages are an extra amount of money beyond compensatory damages that you can seek if the defendant’s conduct was outrageous. The purpose of punitive damages is not to compensate you, but to punish the defendant. That money goes to you anyway. In Florida, a defendant’s misconduct must rise to the level of gross negligence to qualify you to pursue punitive damages. Intentional misconduct can also justify punitive damages.

What is “clear and convincing evidence”?

To win compensatory damages for personal injury, you must prove your case by a “greater weight of the evidence.” To win punitive damages, you must prove the defendant’s gross negligence or intentional misconduct by “clear and convincing evidence.”

Clear and convincing evidence is enough evidence to convince the court of whatever you are trying to prove with a high degree of certainty. It’s a higher standard to meet than a “greater weight of the evidence,” but a lower standard to meet than the “beyond a reasonable doubt” standard used in criminal court.

Comparative negligence

What if more than one party is at fault for the accident? This is a common occurrence. One party didn’t use their turn signal, while the other party was driving the wrong way on a one-way street, for example. If the case goes to trial, the jury will assign each party a percentage of fault.

If you are more than 50% at fault, you recover nothing. A party that is 50% or less at fault will lose that exact percentage of their damages. A party 35% at fault for example, will lose 35% of their damages.

In Florida, juries may still assign comparative fault percentages to you, even when one party is grossly negligent, although such a reckless defendant is more likely to be assigned a greater share of the blame. To be sure, a party who committed gross negligence is at a disadvantage. A jury may or may not assign a grossly negligent party a greater percentage of fault.

Special case: Florida’s no-fault auto insurance system

Florida applies special rules to car accidents. In the event of a car accident, each party relies on their own PIP no-fault insurance to cover the first $10,000 of medical bills, regardless of fault.

Do you need a personal injury lawyer?

Every personal injury claim is different. You might not even know whether the behavior of the person who harmed you even qualifies as negligence. Even if it did, you might not know how to negotiate a generous compensation package. That’s OK, because MattLaw Car Accident & Personal Injury Lawyers has got your back if you want us to help. Call now to schedule a free confidential consultation where we can hear your story and explore your options. Let us see if we can help you. Call us today, or fill out the online personal injury form.