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What is "gross negligence"?
httpwebwitch




msg:4236292
 3:16 pm on Nov 29, 2010 (gmt 0)

I've got a contract here that defines liability limitations, with exceptions for "willful misconduct or gross negligence".

In legal terms I'm pretty certain what willful misconduct is. But what is "gross negligence"?

I know the meaning of negligence, but what makes something "gross"?

 

LifeinAsia




msg:4236317
 4:19 pm on Nov 29, 2010 (gmt 0)

That's one of those vague terms that only gets truly defined in a lawsuit by the lawyers involved. In other words, what may be gross negligence to one party may just be negligence to another.

IANAL, but to me negligence would be an employee forgetting to lock the front door to the office at night. Gross negligence would be the same employee forgetting to lock the front door at night (after being reprimanded for doing the same thing a dozen time, having it pointed out in a performance report, and even being threatened with termination if it continued to happen), which resulted in someone walking off with $50K in computer equipment.

piatkow




msg:4236342
 5:17 pm on Nov 29, 2010 (gmt 0)

A quick glance at Wikipedia suggests that definitions vary depending on the jurisdiction.

httpwebwitch




msg:4236422
 8:26 pm on Nov 29, 2010 (gmt 0)

.. not that I intend to be negligent in any way on any project, but it would be nice to know if I'm liable for damages, if say I forget a semicolon and the software crashes. If I was a lawyer (I'm not) I'd call that a plain old screwup, not something "gross".

httpwebwitch




msg:4236429
 8:38 pm on Nov 29, 2010 (gmt 0)

OK yeah piatkow, wikipedia says that the "negligence" (ordinary) and "gross negligence" are "the same thing, with the addition of a vituperative epithet". Since "gross" is not objectively defined, it is a legally useless adjective.

while they may have a different flavour in prose, in a contract there should be no distinction; I'm liable for "negligence", which may or may not be intentional; negligence may be a result of malice, but is not a sufficient indicator of malice.

"gross" may be meaningful to describe failing of "conduct one expects from the proverbial "reasonable person" (source: wikipedia), but it's not something that defines a distinction in liability.

hmm. that's good to know.

ken_b




msg:4236435
 8:45 pm on Nov 29, 2010 (gmt 0)

hmm. that's good to know.

What?

You're not seriously basing an understanding of some legal issue on what you read at wikipedia?

This is a legal issue you need to talk to a lawyer about.

httpwebwitch




msg:4236446
 9:27 pm on Nov 29, 2010 (gmt 0)

If the client ever knocked on my door with a lawsuit, you bet I'd be calling my lawyer. But just to know whether I'm liable for one kind of negligence or another, or whether there's even a distinction, wikipedia gives a widely encompassing definition.

So, if I conduct my business heeding the wikipedia definition, I won't go wrong. If I'm deliberately non-negligent (ordinarily) then I can't be negligent (grossly).

If I'm at risk of stepping close to the line between gross and not-gross, then a more authoritative source is warranted...

here's another definition, cited from an Encyclopaedia of American Law:
Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

source [legal-dictionary.thefreedictionary.com]

Acting on the side of caution (and ethical business), negligence of any flavour is something I'll avoid. But... I might be asking my lawyer to rewrite a section of my standard contract next year.

Do you have anecdotal stories of lawsuits involving liability in a web project?

piskie




msg:4236506
 12:41 am on Nov 30, 2010 (gmt 0)

My understanding is that "Gross Negligence" broadly speaking arises from a 'reckless disregard' of an accepted and reasonable expectation. That is from my limited, but memorable involvement in industrial relation issues and grounds for Dismissal.

g1smd




msg:4236625
 8:19 am on Nov 30, 2010 (gmt 0)

Gross negligence is one of those things that is only truly defined after the fact, based on what actually happened.

That is, doing something that results in someone breaking their leg might be negligence, but if they had died it would suddenly be gross negligence. So, it's often not the event itself that decides this, it's the outcome of the event.

piatkow




msg:4236750
 12:38 pm on Nov 30, 2010 (gmt 0)


OK yeah piatkow, wikipedia says that the "negligence" (ordinary) and "gross negligence" are "the same thing, with the addition of a vituperative epithet". Since "gross" is not objectively defined, it is a legally useless adjective.

It says that only about ENGLISH law.

httpwebwitch




msg:4236935
 5:05 pm on Nov 30, 2010 (gmt 0)

... and since I'm in Canada it behooves me to find out what the canuck judges say.

I hadn't expected this to be such a slippery definition.

Webwork




msg:4237991
 7:02 pm on Dec 2, 2010 (gmt 0)

Gross negligence tends to put into the same basket of ideas as "recklessness" -> actions taken, or failed to be taken, wilfully, cognizent (with forethought) of a significant (or significantly increased) risk of serious harm/adverse consequences.

You might take a look at criminal statutes in your jurisdiction as they labor to distinguish "degrees of crime" that are often distinguished by a "mens rea" of intent/intentional, reckless and negligent.

Intentional: Murder-> death penalty. Reckless indifference: Second degree homicide(?) -> Long jail sentences. Manslaughter -> close to a "criminal negligence" standard, which tends to be higher or different or a variation of simple negligence or negligence for civil liability purposes.

When it comes to contracts be certain to read and interpret the contract in light of the law of the "governing jurisdiction". Unless both parties are Canadian there may be conflicts of law issues OR the contract may specify whose law governs. In the USA you may have 50 different versions of "State common and statutory law" to consider, i.e., which on applies? (Most/many contracts will spell out the controlling law.)

iamlost




msg:4238155
 2:56 am on Dec 3, 2010 (gmt 0)

Please consult a competent qualified attorney. I am not such but have discussed this topic with my law-type-person in the past (we are both Canadian).

There is a Common Law progression in severity from mere negligence to gross negligence to wilful misconduct.

Generally:
mere negligence == failure to do what a reasonably prudent person would do in similar circumstance OR to do something that a reasonably prudent person would not do in similar circumstance.

gross negligence == a very marked departure from the normal behaviour or standards of a reasonable and competent person in similar circumastance OR circumstance where risk of mishap/consequence is greater than normal therefor requiring greater than ordinary care that was not taken.

willful misconduct == voluntary and intentional misconduct or reckless behaviour.

Important to note: increasingly these and similar terms are being specifically defined within/for each contract. Given the uncertainty of circumstance and differences between professions Contractual Definitions are becoming common. Also some industry organisations specify such terms for use between members.

OMZen




msg:4238883
 9:52 am on Dec 5, 2010 (gmt 0)

OP, @iamlost has it correct at least in health profession ( I know cuz' I was operated on my spinal cord without informed consent, without CT/MRI spine resulting in T4 paraplegia - judgement was "gross" negligence )

aspdaddy




msg:4239389
 6:34 pm on Dec 6, 2010 (gmt 0)

It all depends on the accepted professional standards in your area/sector. If in doubt always take a backup first.

henry0




msg:4239885
 11:20 pm on Dec 7, 2010 (gmt 0)

This is the key
<<<
Important to note: increasingly these and similar terms are being specifically defined within/for each contract. Given the uncertainty of circumstance and differences between professions Contractual Definitions are becoming common. Also some industry organisations specify such terms for use between members.
>>>
Ask for terms spec.

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