Ordinary negligence is negligence caused by absent-mindedness, carelessness, or ignorance, for example. In other words, there is no intention to be negligent. Gross negligence, on the other hand, involves someone willfully or intentionally failing to prevent harm to another person, or knowingly failing to act in the way any reasonable, responsible person would act in similar circumstances.

Why Does it Matter if the Negligence is Ordinary or Gross Negligence? 

In a personal injury case, the difference between ordinary and gross negligence can determine the degree of fault or liability of the negligent party, and this can affect what the victim is entitled to in terms of compensation for the harm the negligence caused. A finding of gross negligence may result in higher levels of compensation for the victim(s) of the negligence.

Another important reason to determine the level of negligence is that in cases of gross negligence, waivers signed by the victim may become unenforceable. In Colorado, with its many opportunities for outdoor adventure, this can be especially significant. For example, if a skier signs a waiver of liability for accidents at a ski resort, that does not mean they sign away their rights to sue if the resort or its employees are grossly negligent. A waiver does not release a person or business from taking reasonable precautions to protect others.

What Are Some Examples of Ordinary and Gross Negligence?

Ordinary negligence is negligence that is unintentional and caused by things like carelessness, inattention, or ignorance. For example, a store owner who fails to clean up a spill that has not been reported is likely to be found guilty of ordinary negligence. If that store owner was told about the spill and directed an employee not to clean it up, however, that might be determined to be gross negligence. A traffic example would be that running a stop sign due to inattention might be determined to be ordinary negligence, but running a stop sign because your blood alcohol was over the legal limit might be determined gross negligence, as all drivers have a well-known obligation not to drive drunk. In the case of a ski resort, not warning skiers that a particular run might be icy could be seen as ordinary negligence (or not negligence at all), while refusing to do required maintenance on ski lifts to save money might be determined to be gross negligence.

What is the Burden of Proof Regarding Negligence in a Personal Injury Case?

Negligence is generally a factor in personal injury cases, which are civil cases. When a personal injury case goes to trial, the plaintiff (victim) must prove liability by a preponderance of the evidence. This means that 51% of the evidence, at minimum, must show liability. This is quite a different standard than in criminal cases, in which guilt must be proven “beyond the shadow of a doubt.” The burden of proof in civil cases allows for some doubt to exist while still finding a party liable.