Negligence refers to a failure, on the part of either a person or a business, to exercise reasonable caution in a situation or to discharge a duty. Gross negligence amplifies this, and can be charged in circumstances where the actions are seen as reckless, willful, or unreasonable. For example, say a star high school football player is knocked unconscious during a game. When he recovers, he tells the coach he sees double—a potential sign that the player has suffered a concussion. Instead of removing him from the game, the coach insists that he continue to play. Potentially, the coach can be charged with gross negligence.
There are four factors involved in a negligence claim that any defendant will have to address. They are:
Duty of care
A defendant has to show that he or she performed reasonably given the context and circumstances. “Reasonable care” under the law means that a common citizen with an ordinary amount of reason, social responsibility, and/or care would have acted the same in the same event.
Breach of duty of care
“Breaching a duty” under the law means that a defendant did not exercise reasonable care to not cause injury or property damage. A defendant must prove that he or she did not breach a duty. A reasonable level of care needs to be shown.
This is very related to breach of duty. A defendant must prove that he or she did not breach a duty, and therefore negligent actions could not have been the cause of any damages. In the case above, for example, a defendant might argue that the concussion had been caused by earlier practice in the player’s own yard.
A defense against gross negligence will attempt to prove that the defendant is not responsible for any damages because he or she exercised reasonable duty of care. (Damages refer to the losses caused by a breach of duty; they can be physical, emotional and financial.)