Jill Kolodner | August 15, 2020 | Personal Injury
Most personal injury cases are based on the theory of negligence. Proving negligence is essential for a victim to recover compensation for injuries after a car accident, slip and fall injury, motorcycle accident, or other personal injuries. If the victim cannot establish negligence, the victim may not receive compensation for injuries, damages, and losses.
When handling personal injury claims, an injury lawyer analyzes the case for negligence. However, the attorney may also examine the case for evidence showing gross negligence. Gross negligence can enhance and increase the damages that a victim may be entitled to receive in a personal injury case.
What is Negligence?
General negligence refers to the duty of care a party owes to another party. For example:
- Motorists owe a duty of care to other drivers, pedestrians, and bicyclists not to operate the vehicle in a manner that could cause a collision.
- Property owners owe a duty of care to the people who come onto their property to take reasonable steps to prevent accidents.
- Dog owners owe a duty of care to restrain their animals so that dogs do not cause injuries.
- Doctors owe their patients a duty of care to provide treatment based on the accepted medical standard of care.
- A store owner has a duty of care to keep the property free from hazards and dangers.
- Nursing homes have a duty of care to protect residents from abuse and neglect.
If a party breaches the duty of care, the victim may be entitled to compensation for damages. However, the theory of negligence requires that the victim prove that the breach of duty created a dangerous or hazardous situation that directly led to the person’s injuries and damages.
If a victim cannot prove all four elements of negligence (duty, breach of duty, causation, and damages), the person is not entitled to compensation for the accident or injury.
Negligence vs. Gross Negligence
Proving negligence does not require that you prove that the party intentionally caused your injury. Negligence only requires that you prove the party’s careless action led to the cause of your accident.
Gross negligence is a step up from ordinary negligence. The person’s behavior demonstrated a willful, wanton disregard for the safety of others. Gross negligence goes far beyond carelessness and failing to act with reasonable care.
A party guilty of gross negligence did something that was likely to cause an injury. DUI accidents are examples of cases that involve gross negligence. It is understood that driving while under the influence of alcohol or drugs is dangerous and reckless.
A driver participating in a street race may be another example of gross negligence. The driver understood the danger and willfully continued with the activity despite the risk of injury to others. Another example might be a doctor failing to read a patient’s chart before surgery and performing a procedure on the wrong location.
For a party to be guilty of gross negligence, you must first prove that the party was negligent. You must then prove that the party knew the action could cause harm to others but intentionally continued with the act.
Evidence used to prove gross negligence may include:
- Eyewitness testimony
- Video or photographic evidence
- A patient’s medical records
- Violations of codes and statutes
- Expert testimony
It can be difficult to prove that a person acted willfully in some situations. An experienced personal injury lawyer understands how to use the evidence in a case to overcome the allegation that the defendant was not aware of the danger or did not act willfully.
Damages Awarded When Gross Negligence is Established in a Personal Injury Case
If you prove that a party negligently caused you harm or injury, you may be entitled to compensation for economic and non-economic damages. Damages in a personal injury claim may include:
- The cost of medical and personal care
- Physical therapy and other forms of therapy
- Travel expenses to and from doctor’s visits
- Help with household chores and childcare
- Loss of income, wages, and benefits
- Future loss of income and ongoing medical treatment
- Diminished earning capacity
- Physical pain and suffering
- Scarring, disfigurement, and disability
- Mental anguish and emotional suffering
- Loss of enjoyment or quality of life
However, there is a third category of damages that is available in some personal injury cases. Punitive damages may be awarded in cases involving gross negligence.
Punitive damages “punish” the at-fault party for gross negligence. They are intended to discourage that party and all other parties from acting in the same manner in the future. Punitive damages are paid directly to the victim, which can increase the value of a personal injury claim.
Punitive damages are rare in personal injury cases. However, when a party’s actions rise to the level of gross negligence, an award of punitive damages may be justified.