By Doyice Cotten

We have written before about the distinction between ordinary negligence and gross negligence:

Ordinary negligence is the failure to use such care as a reasonably prudent and careful person would under similar circumstances. It is an unintentional act or failure to act that causes harm to another party.

Gross Negligence is an extreme form of negligence in which one fails to use the care that even a careless person would use. Many jurisdictions hold that  gross negligence involves more than a simple breach of the standard of care; the person must be consciously indifferent to the effects of the action.

We have written in earlier posts that gross negligence involves a different mindset than does ordinary negligence. So one can’t usually say that if the provider was negligent in 3 ways — then he is grossly negligent. We intend to reiterate here that generally, several actions that would be considered ordinary negligence individually do NOT  “add up to,” and therefore constitute, gross negligence. In last week’s post regarding the Triathlon death in Pennsylvania, the plaintiffs claimed ordinary negligence, gross negligence, and recklessness by the defendants. The allegations were that the event providers:

• Failed to make a reasonable inspection of the premises and event course.
• Failed to remove or take measures to prevent dangerous conditions.
• Failed to follow rules, regulations, policies and procedures governing safety procedures.
• Failed to properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonably safe manner.
• Failed to properly construct or design a safe event route to avoid dangerous conditions.
• Failed to regulate or control the number of individuals participating in each phase of the race simultaneously.
• Failed to have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue.
• Failed to have adequate safety personnel on hand for each aspect of the event.

Each of these allegations, if proven, could be considered to constitute ordinary negligence. The trial court supported only the claim of ordinary negligence, rejecting the claims of gross negligence and recklessness. A likely reason for this ruling might have been that the promoters of the event did not show a conscious indifference to safety; they probably took many other precautions and safety measures, hence, no conscious indifference.

Summary

So, again, we say that service providers (and some courts) have difficulty distinguishing between ordinary and gross negligence. Acts such as failure to inspect, failure to supervise, and failure to enforce rules generally constitute ordinary negligent acts – for which, waivers of liability generally protect the provider. Gross negligence usually requires an uncaring mindset. In some cases, however, if the negligent act could have very serious consequences – like failing to make certain the bungee cord is properly secured — a court could consider it to be gross negligence. In cases of gross negligence, a waiver will not usually protect the service provider.

Notice of Error: The ruling was erroneously reported in the Feb 4, 2020 post. The Pennsylvania Supreme Court ruled that the waiver was enforceable.

Photo Credit: Thanks to Mark Harkin via Flickr.