CACI No. 425. “Gross Negligence” Explained

Judicial Council of California Civil Jury Instructions (2020 edition)

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425.“Gross Negligence” Explained
Gross negligence is the lack of any care or an extreme departure from
what a reasonably careful person would do in the same situation to
prevent harm to oneself or to others.
A person can be grossly negligent by acting or by failing to act.
New April 2008; Revised December 2015
Directions for Use
Give this instruction if a particular statute that is at issue in the case creates a
distinction based on a standard of gross negligence. (See, e.g., Gov. Code,
§ 831.7(c)(1)(E) [immunity for public entity or employee to liability to participant in
or spectator to hazardous recreational activity does not apply if act of gross
negligence is proximate cause of injury].) Courts generally resort to this definition if
gross negligence is at issue under a statute. (See, e.g., Wood v. County of San
Joaquin (2003) 111 Cal.App.4th 960, 971 [4 Cal.Rptr.3d 340].)
Give this instruction with CACI No. 400, Negligence - Essential Factual Elements,
but modify that instruction to refer to gross negligence.
This instruction may also be given if case law has created a distinction between
gross and ordinary negligence. For example, under the doctrine of express
assumption of risk, a signed waiver of liability may release liability for ordinary
negligence only, not for gross negligence. (See City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095]; see also
CACI No. 451, Affırmative Defense - Contractual Assumption of Risk.) Once the
defendant establishes the validity and applicability of the release, the plaintiff must
prove gross negligence by a preponderance of the evidence. (Eriksson v. Nunnink
(2015) 233 Cal.App.4th 708, 732, 734 [183 Cal.Rptr.3d 234].) A lack of gross
negligence can be found as a matter of law if the plaintiff’s showing is insufficient
to suggest a triable issue of fact. (See Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 638-639 [184 Cal.Rptr.3d 155]; cf. Jimenez v. 24 Hour
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555 [188 Cal.Rptr.3d 228] [whether
conduct constitutes gross negligence is generally a question of fact, depending on
the nature of the act and the surrounding circumstances shown by the evidence].)
Sources and Authority
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara, supra, 41 Cal.4th at
p. 754, internal citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
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harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.”
(City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations
omitted.)
• “California does not recognize a distinct cause of action for ‘gross negligence’
independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th
826, 856 [120 Cal.Rptr.3d 90].)
• “Gross negligence is pleaded by alleging the traditional elements of negligence:
duty, breach, causation, and damages. However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072,
1082 [122 Cal.Rptr.3d 22], internal citation omitted.)
• “The theory that there are degrees of negligence has been generally criticized by
legal writers, but a distinction has been made in this state between ordinary and
gross negligence. Gross negligence has been said to mean the want of even scant
care or an extreme departure from the ordinary standard of conduct.” (Van Meter
v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644], internal citation
omitted.)
• “Numerous California cases have discussed the doctrine of gross negligence.
Invariably these cases have turned upon an interpretation of a statute which has
used the words ‘gross negligence’ in the text.” (Cont’l Ins. Co. v. Am. Prot.
Indus. (1987) 197 Cal.App.3d 322, 329 [242 Cal.Rptr. 784].)
• “[I]n cases involving a waiver of liability for future negligence, courts have held
that conduct that substantially or unreasonably increased the inherent risk of an
activity or actively concealed a known risk could amount to gross negligence,
which would not be barred by a release agreement. Evidence of conduct that
evinces an extreme departure from manufacturer’s safety directions or an
industry standard also could demonstrate gross negligence. Conversely, conduct
demonstrating the failure to guard against, or warn of, a dangerous condition
typically does not rise to the level of gross negligence.” (Anderson v. Fitness
Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal.Rptr.3d 792], internal
citations omitted.)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41
Cal.4th at p. 777, original italics.)
• “ ‘Prosser on Torts (1941) page 260, also cited by the Van Meter court for its
definition of gross negligence, reads as follows: “Gross Negligence. This is very
great negligence, or the want of even scant care. It has been described as a
failure to exercise even that care which a careless person would use. Many
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courts, dissatisfied with a term so devoid of all real content, have interpreted it
as requiring wilful misconduct, or recklessness, or such utter lack of all care as
will be evidence of either - sometimes on the ground that this must have been
the purpose of the legislature. But most courts have considered that ‘gross
negligence’ falls short of a reckless disregard of consequences, and differs from
ordinary negligence only in degree, and not in kind. So far as it has any
accepted meaning, it is merely an extreme departure from the ordinary standard
of care.”’”(Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358
[257 Cal.Rptr. 356], original italics, internal citations omitted.)
• “In assessing where on the spectrum a particular negligent act falls, ‘ “[t]he
amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater, the actor is
required to exercise caution commensurate with it.” ’ ” (Hass v. RhodyCo
Productions (2018) 26 Cal.App.5th 11, 32 [236 Cal.Rptr.3d 682].)
• “Generally it is a triable issue of fact whether there has been such a lack of care
as to constitute gross negligence [citation] but not always.” (Chavez v. 24 Hour
Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [189 Cal.Rptr.3d 449].)
• “The Legislature has enacted numerous statutes . . . which provide immunity to
persons providing emergency assistance except when there is gross negligence.
(See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good
faith renders emergency care at the scene of an emergency occurring outside the
place and course of nurse’s employment unless the nurse is grossly negligent];
Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-
call in a hospital emergency room who in good faith renders emergency
obstetrical services unless the physician was grossly negligent, reckless, or
committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for
licensed physician who in good faith and without compensation renders
voluntary emergency medical assistance to a participant in a community college
or high school athletic event for an injury suffered in the course of that event
unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706
[immunity for certified respiratory therapist who in good faith renders emergency
care at the scene of an emergency occurring outside the place and course of
employment unless the respiratory therapist was grossly negligent]; Bus. & Prof.
Code, § 4840.6 [immunity for a registered animal health technician who in good
faith renders emergency animal health care at the scene of an emergency unless
the animal health technician was grossly negligent]; Civ. Code, § 1714.2
[immunity to a person who has completed a basic cardiopulmonary resuscitation
course for cardiopulmonary resuscitation and emergency cardiac care who in
good faith renders emergency cardiopulmonary resuscitation at the scene of an
emergency unless the individual was grossly negligent]; Health & Saf. Code,
§ 1799.105 [immunity for poison control center personnel who in good faith
provide emergency information and advice unless they are grossly negligent];
Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or
other law enforcement officer who in good faith renders emergency medical
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services at the scene of an emergency unless the officer was grossly negligent];
Health & Saf. Code, § 1799.107 [immunity for public entity and emergency
rescue personnel acting in good faith within the scope of their employment
unless they were grossly negligent].)” (Decker, supra, 209 Cal.App.3d at pp.
356-357.)
• “The jury here was instructed: ‘It is the duty of one who undertakes to perform
the services of a police officer or paramedic to have the knowledge and skills
ordinarily possessed and to exercise the care and skill ordinarily used in like
cases by police officers or paramedics in the same or similar locality and under
similar circumstances. A failure to perform such duty is negligence. [para.] The
standard to be applied in this case is gross negligence. The term gross
negligence means the failure to provide even scant care or an extreme departure
from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219
Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under
Health & Saf. Code, § 1799.106, which provides that a police officer or
paramedic who renders emergency medical services at the scene of an
emergency shall only be liable in civil damages for acts or omissions performed
in a grossly negligent manner or not performed in good faith].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 331
Advising and Defending Corporate Directors and Officers (Cont.Ed.Bar) § 3.13
1 Levy et al., California Torts, Ch. 1, General Principles of Liability, § 1.01
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, §§ 380.10,
380.171 (Matthew Bender)
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