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Recklessness & Gross Negligence

Recklessness & Gross Negligence

Negligence

A negligence action requires a plaintiff to prove four elements:

1. The defendant owed the plaintiff a duty to act reasonably in some aspect;

2. The defendant failed to act in such a manner;

3. The defendant’s breach caused the plaintiff’s injury; and

4. The injury suffered by the plaintiff is one of which the law provides for the recovery of damages.

This page will provide a brief overview of two more flagrant forms of negligence: gross negligence and recklessness.

Gross Negligence & Recklessness

Gross Negligence and Recklessness are flagrant acts of negligence. If you were to put them on a spectrum, gross negligence would be between negligence and recklessness.

Although punitive damages are not available for gross negligence, they may be available for reckless behavior. The jury determines an actor’s level of negligence on the negligence spectrum.

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Gross Negligence

A defendant is grossly negligent if he or even fails to give even slight care to the possible ramifications of his or her actions. It requires an intentional, conscious failure to do what one should do or the intentional doing of what one should not do.

An example of gross negligence comes from a Supreme Court of South Carolina case. Two high school students were riding in an elevator to the platform of a bungee-jumping attraction at a Myrtle Beach amusement park. The elevator had suffered from mechanical issues for some time.

The park closed the attraction and hired a local shrimp-boat mechanic to fix it. A local licensing board knew of the rides problems and failed to inspect it before it reopened.

After the attraction reopened, the operator failed to abide by the elevator’s new procedures, the elevator failed, and the high school students plummeted to their death.

The Supreme Court found that the estates of the students could sue the licensing board, despite governmental immunity, because the board had been grossly negligent in failing to examine the elevator before it opened. You can read the case here. Steinke v. S. Carolina Dep’t of Labor, Licensing & Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999).

This case details the effects of gross negligence on a lawsuit. Although gross negligence generally does not provide special damages, it is useful in getting around some statutory exceptions that would otherwise prevent a negligence lawsuit from proceeding.

Recklessness

Recklessness is a higher degree of negligence than both negligence and gross negligence. Courts have defined it as knowingly engaging in a negligent act. It is behavior that a reasonable person would know is likely to invade another’s right.

An example of recklessness comes from a South Carolina case. There, a utility removed a stop sign from an intersection while repairing underground cables.

A few weeks later, a car accident occurred in that intersection when one driver, who would have stopped if the stop sign was upright, blew through the intersection and hit a car that was traveling on the other road.

The Supreme Court held that the jury were well within their discretion to find that a utility that allowed a stop sign to be discarded in a ditch for a period of two weeks or more could be acting in utter disregard of the safety of those that traveled the road. You can read the case here. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991).

A few other things to know about recklessness

Note that under South Carolina law, negligence per se can require a jury instruction on recklessness and may be used as evidence of it.

Recklessness has two benefits for the plaintiff in a lawsuit. Like gross negligence, it can get around some statutory exemptions. It also opens the door for punitive damages, which allow a plaintiff to win damages that are not intended to compensate them for their loss.

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Kirk Morgan

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