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What is the Difference Between Negligence and Gross Negligence?

Article Reviewed By Justin McMinn, JD
Justin McMinn is a lead personal injury attorney at McMinn Law Firm.

Car wrecks, work related injuries, wrongful death suits, medical malpractice, even criminal charges can be considered negligence, but what is the difference between civil negligence and criminal negligence? Read this post to find out the major differences between negligence and gross negligence as it relates to personal injury law.

As personal injury lawyers in the Austin, TX area we see a lot of cases. See our examples about negligence vs gross negligence to learn about this area of personal injury cases.

Infographic: Negligence Vs Gross Negligence

Because there are so many nuances in personal injury negligence, it can be difficult concept to understand. The most important thing to understand is that negligence is carelessness. Read this infographic to better understand why some negligence is more severe, and why it's called "gross negligence."

Civil vs. Criminal Negligence

Since we will be talking about civil negligence, it is important to understand the difference between civil and criminal negligence.

The difference between civil and criminal law is simple conceptually but can be difficult to discern once you start applying the concept. However, for this blog it’s simple: criminal law is meant to maintain the stability of society and is therefore, filed by a public court on the national, state, or local level.

Criminal law applies to acts like murder, manslaughter, or even speeding and texting while driving.

Civil law is filed between two private parties. It’s primary purpose is to deal with disputes among people and/or organizations. Instead of state or public officials filing the lawsuit, a plaintiff who has suffered harm or loss from a negligent act hires a lawyer who files suit. Examples include car accidents, property damages, or medical malpractice. In these cases the disputes and therefore lawsuits are against an organization or individual; the government does not take action.

What Is Negligence

Negligence is primarily part of tort law (tort is a civil wrong—meaning not a criminal act and must be solved in a civil court—that causes stress or harm to another person and imposes a legal liability). However, many cases of negligence are filed in both criminal and civil courts.

In one word, negligence can be described as carelessness. It’s when a person does not take reasonable care over a situation where a prudent person would have taken that level of care.

Instances in which you or someone you know has suffered an injury or a financial loss resulting from a careless incident by a third party are generally negligent acts. For instance, you get rear ended at a stoplight, your slip and fall in a restaurant that didn’t put up a wet floor sign, your doctor accidentally prescribes you the wrong medicine. These are instants when you were owed a certain “duty of care” and that “duty of care” was “breached.” This “breach” “factually caused” you to suffer a loss or harm and now you require “damages” or compensation to be help you heal or recover from the negligent incident.

These are the four elements of negligence:

  • Duty of Care:This is the first element that must be established in any case where someone is trying to prove negligence. It is a standard of reasonable care the defendant should or should have made to reasonably prevent the plaintiff from experiencing harm or a loss. There is no strict rule that outlines a duty of care in every situation, so sometimes it depends on the lawyers’ and jury’s interpretation of a situation. One test you can use is, “Would a reasonable person know they had a duty to keep the plaintiff safe from the incidental situation.”
  • Breach of Duty: Now that a duty has been established, the second step a lawyer has to make is to determine if the defendant breached this duty he or she had to the plaintiff. This is also open to interpretation and often resolved through a lawyer being able to show previous verdicts from the vault of ever increasing case law. But basically, the plaintiff has to show that the duty the defendant owed him was breached.
  • Factual Causation: The third element, is to prove that the duty that was breached lead to harm or loss to the plaintiff. Although this sounds like a simple connection of cause and effect, determining which causes lead to certain effects is often disputed. For instance, an insurance company might argue that an injury you received as the result of a car accident was not actually because of the car accident, but was a preexisting condition.
  • Damages:The final element in determining the outcome of a negligent case, is showing how the loss or harm requires monetary damages and compensation to help the plaintiff recover from this loss or harm. Oftentimes this will seem utterly obvious. A car wreck inevitably leads to damages, but what about libel or slander? The judge or jury would have to ask the “reasonable” question again. Would a reasonable person suffer damages from this incident?These damages include:
    • economic damages (medical expenses, lost income, and property damage)
    • non-economic damages (pain and suffering and mental anguish)

So to review, negligence is a tort which is a civil wrong that has to be disputed in a civil court. For negligence to exist you have to prove that the defendant owed you a duty of care, that he or she then breached, this lead to a harm or loss on your part, and resulted in the need for monetary damages or compensation.

What is Gross Negligence?

Now that we’ve defined what negligence is, it’ll be easier to understand the difference between regular negligence and gross negligence. As we said earlier, negligence results from a party failing to provide reasonable care to someone and therefore, performs a careless act resulting in harm and loss for another party.

The definition of “gross” is unattractive, bloated, or large. In monetary terms it means “without deduction.” So think of gross negligence as a big bloated, ugly situation or, in other words, a seriously careless act. A person has fallen so far behind the reasonable standard of care that they are now considered gross. Sometimes gross negligence is a synonym with recklessness.

Examples in the past have included:

  • a doctor amputating the wrong limb on a patient
  • a surgeon leaving a foreign body inside a patient
  • speeding in a parking lot when people are walking to their cars
  • a caregiver failing to feed the elderly for days at a time
  • a business selling a product they know is harmful

The biggest difference is in the severity of the consequences and the type of damages. A victim of gross negligence can sue for punitive damages. These are damage mean to punish the defendant so that he or she does not commit the gross act again.

Essentially, the difference is in the severity of the carelessness.

McMinn Law Firm Settles Dog Bite Case for 10K in Punitive Damages

If you want an example of how gross negligence can work in practice, take a look at this dog bite case McMinn Law Firm won for their client in 2016.

In a jury trial for Jason McMinn’s client, he was able to convince members of the jury to issue a verdict that found the defendants to be guilty of negligence and gross negligence.

A 53-year-old man was severely bit by his neighbors dog in December of 2014. The dog jumped the fence and bit McMinn Law Firm’s client, James Duff, while he was in his own backyard. Jason McMinn filed a suit showing how dangerous the dog was, citing a dog bite incident from 2013 when the owner’s dog bit a 12-year-old boy. Animal control officers advised the defendants, Allen Smith and Patricia Briggs, to train their dog “King” as well as find ways to prevent the dog from jumping to the top of the fence.

Lawyers at McMinn Law Firm Fight For Your Rights

If you or someone you know has been the victim of a negligent act, you might need some counsel to understand the ramifications and the severity of your case. Contact us for a free consultation.

Jason McMinn and Justin McMinn are experienced car accident lawyers and personal injury attorneys in Austin. The staff at McMinn Law Firm is committed to providing exceptional service to each and every client, no matter the size of the case. No case is too small for McMinn Law Firm. Think you might have a case? Call our office today for a free consultation.

Want to get a better idea about the types of cases that McMinn Law Firm works on? Take a look at the jury verdicts and settlements page to see a selection of just some of the cases McMinn Law Firm has settled.