Proving negligence is crucial to almost every personal injury claim, and it’s up to the plaintiff (the injured party) to prove that someone else or some other entity was negligent and that the negligence caused the injury (or, in the case of wrongful death, that the negligence caused a death). Negligence is an abstract term, and basically, it has two elements: “Duty of care” and a “breach” of that duty of care.
Alllaw.com explains the elements of negligence as follows: “Duty of care” is a legal term that refers to the responsibility one person has to avoid causing harm to another. In a personal injury claim…the first step in proving that another person was negligent is to establish that he or she had a duty of care in the situation that gave rise to the injury.”
After it’s established that the person had a duty of care to the injured party, the plaintiff must show exactly how the defendant failed to meet that duty of care—how that duty of care was “breached.” Once breach of duty is established, the plaintiff must then show that injuries were suffered due to the breach of duty. “Damages” is the legal term for the monetary compensation you collect from the at-fault party in a personal injury claim or lawsuit.
Ordinary and Gross Negligence
The words “ordinary” and “gross” are used to differentiate two types of negligence in personal injury claims or lawsuits. Ordinary negligence refers to careless mistakes or inattention, while gross negligence is used to denote an act that is much more than simple carelessness or inattention. Gross negligence is a “conscious or willful disregard of the need to use reasonable care.” A defendant may be accused of gross negligence even in cases where the harm was not intended.
Here are some examples of ordinary vs. gross negligence:
- A driver running a stop sign and causing a car accident with injury may be accused of ordinary negligence. A driver who intentionally speeds up and drives through a crowded crosswalk when pedestrians have the right of way will likely be accused of gross negligence.
- A doctor who prescribes too high a dose of a blood pressure medication would likely be accused of ordinary negligence if the patient fell ill after taking the dose, while a doctor removing the wrong breast in a mastectomy would be accused of gross negligence.
- A truck driver who falls asleep at the wheel may be accused of ordinary negligence in the event of a collision, while a trucking company who purposefully overloaded a fleet of trucks by several thousand pounds each could be accused of gross negligence.
The distinction between the two is basically all about the severity of the negligence. Even if that doctor mistakenly removed the wrong breast of his patient, he can still be accused of gross negligence if it was deemed reckless conduct because the intention to do harm need not be present in gross negligence cases.
Adam Smith Law