Distinguishing between Ordinary Negligence and Gross Negligence in California is Tough

By Doyice Cotten

It is not surprising that sport and recreation managers are confused by the difference between ordinary negligence and gross negligence because sometimes attorneys and judges also face this problem. It is exasperated by the fact that the definitions vary from state to state. So we will look at how courts in one state, California, face this problem.

In California, a waiver of liability can bar claims for ordinary negligence and thereby protect the service provider from liability for ordinary negligence. However, a waiver will not protect against liability for gross negligence.


Gross Negligence has been defined by California courts as:

1)  “want of ever scant care”

2)  “an extreme departure from the ordinary standard of conduct”

3)  “such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results”


Ordinary Negligence, on the other hand, has been defined as:

1)  “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm”

2)  the failure to discover a dangerous condition or to perform a duty is mere nonfeasance, not gross negligence


Cases to Look At

One court (Johnson v. Mayacamas Holdings, LLC, 2021)has pointed out that while “[e]vidence of conduct that evinces an extreme departure from safety directions or an industry standard could demonstrate gross negligence,” it seems that “conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.” This was deemed as mere nonfeasance which does not constitute negligence.

Two guys went hiking and “stumbled upon” Hidden Lake. Johnson took one of the canoes onto the water with no problem. The next day, Johnson, Williams, and two other guests went hiking before the day’s scheduled activities. They arrived at Hidden Lake and took turns taking the two canoes onto the water. They found a bin containing life jackets, but could not get it open. There were no warning signs. Plaintiffs alleged gross negligence “because they did not lock up the canoes, post signs, provide a flotation device and life vests, or warn guests about “cold water shock” and canoeing at the lake, including admonishing them that canoes can capsize and life vests should be worn.” There was no triable issue of gross negligence because the defendant did not actively increase the risk or conceal it.

In Willhide-Michiulis, a snowboarder collided with snow grooming equipment. It was alleged that  the equipment was used on an open run without spotters or adequate warning of the danger. The court ruled that this did not constitute gross negligence.

In Anderson v. Fitness Internat., LLC (2016), a customer slipped and fell in health club’s shower room. The floor was routinely covered with oily and soapy residue. This was ruled to be no extreme departure from expected conditions or safety standards, and the defendant did not actively increase the risk or conceal it.

In Erickson v. Nunnick, 2015, the court found a triable issue as to gross negligence where defendant unreasonably increased the inherent risk of injury in horse jumping by allowing the victim to ride an unfit horse and concealing the horse’s unfitness.

In  Rosencrans v. Dover Images, Ltd. (2011)motorcycle rider fell on a motorcross track during a practice run, at a location where he was not visible to other riders; after he stood and picked up his motorcycle, two other motorcyclists struck him. The court determined that, as a matter of law, the operator owed the plaintiff a duty to minimize the risks of motorcross by providing a system, such as a “caution flagger,” to alert riders of a fallen participant. Based on admissible evidence in the form of an instructional manual, which directed that flaggers should remain at the flag station at all times when competitors are on the course, and a declaration of a motocross safety expert, who averred that the common practice was to always place caution flaggers at their posts and the failure to do so greatly fell below the standard of care in the motocross industry. The court concluded there was a triable issue of fact as to whether the operator’s failure to provide the caution flagger constituted an extreme departure from the ordinary standard of conduct—that is, gross negligence.

Looking back and comparing Rosencrans with Johnson v. Mayacamas, the court found no evidence comparable to that in Rosencrans suggesting the conduct was so extreme as to constitute gross negligence. There was no evidence, for example, of an applicable instructional manual. Nor was there admissible testimony from an expert that such conduct would greatly fall below the standard of care applicable specifically to operators of resorts akin to Mayacamas Ranch.

 Are you Still Confused?

It is not always easy to understand the finer points of the law. But your take-aways should be 1) have a good waiver, 2) have good insurance, 3) know and adhere to the standard of care practiced by your industry.

Photo Credit: Thanks to Driver Photographer  via Flickr.