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Negligence, Gross Negligence, Willful and Wanton Negligence in Virginia: What Is The Difference?

(And Why Does It Matter?)

In Virginia personal injury law, there are three different types of negligence: Ordinary or simple negligence, gross negligence, and willful and wanton negligence. Which type of negligence exists in a case sometimes plays a significant role in determining the outcome and amount of compensation.

Defining Types of Negligence

Personal injury cases in Virginia take many different forms, including:

These cases usually involve some type of accident that another person (or company) caused. To establish the right to compensation, the injured individual usually needs to establish that the at-fault person was negligent in causing the accident. This type of negligence constitutes ordinary or simple negligence. When someone uses just the term "negligence," they are referring to ordinary or simple negligence— but exactly what does the term negligence mean?

In determining the meaning of legal terms, there are situations when prior court decisions — rather than state laws or statutes — establish the definition of a legal term. Under the legal doctrine of stare decisis (Latin for “to stand by things decided”), Virginia courts apply rules and definitions from previous court decisions in drawing conclusions about current cases.

The doctrine of stare decisis applies to the definitions of negligence, gross negligence, and willful and wanton negligence. Prior decisions of our state courts establish the criteria for determining each type of negligence.

Negligence, Gross Negligence, and Willful and Wanton Negligence

Level of RiskVirginia courts define ordinary or simple negligence as a failure to use the degree of care that an ordinarily or reasonably prudent person would use under the circumstances to avoid injuring another person. Whether negligence exists in a specific situation depends entirely on the facts of the case.

A claim of negligence in a personal injury case requires establishing the at-fault person’s breach of the duty to use reasonable care in specific circumstances. In addition, that breach of duty — or failure to use the required degree of care — must cause the victim’s injuries. If the negligence did not result in the injuries, a case cannot be established.

Ordinary negligence does not require the intention to do wrong by the at-fault person. It can occur inadvertently or due to lack of attention. It also does not require any recognition by the at-fault party that the action or failure to act could harm another person.

Most car accidents involve ordinary negligence by the at-fault driver. Examples include accidents resulting from traffic violations like speeding and crashes caused by distracted driving.

In contrast, gross negligence involves an utter disregard for the welfare of other people. This level of negligence still does not require intentional wrongdoing. However, it does involve the at-fault person’s complete indifference to whether harm could result from the conduct.

Running a red light constitutes ordinary negligence in most cases. However, if a driver consciously floors the accelerator to beat a changing light, and drives through a red light at a speed well in excess of the speed limit, that driver might be grossly negligence.

Willful and wanton negligence — sometimes called reckless negligence — does involve an intentional disregard for the likelihood of an action causing injury to others. The at-fault person does not necessarily intend to harm a specific victim. However, the person knows of that harm is likely to result and intends to commit the act despite that knowledge. If a person drinks to the point of extreme intoxication, drives a car, and causes an accident, that person's negligence can reach the level of willful and wanton negligence.

The fine-line differences among the three types of negligence are sometimes hard to distinguish. Virginia court decisions state that the difference between simple negligence and gross negligence is one of degree.

However, the courts recognize the difference between negligence and willful and wanton negligence as a matter of kind, rather than degree. Willful and wanton negligence involves actual or constructive consciousness of the danger of harm to others. That awareness of the risk of harm is not an element of ordinary negligence or gross negligence.

When Does the Type of Negligence Matter?

In most accidents and personal injury claims, ordinary or simple negligence is the standard that applies. However, there are several different situations when the type of negligence can make a difference.

In some circumstances, Virginia statutes impose liability only in situations involving gross negligence rather than ordinary negligence. If a claim falls under one of those statutes, the higher negligence standard applies. Alleging simple negligence will not be sufficient to establish a claim.

In addition, a claim for punitive damages under common law requires establishing that the at-fault person’s conduct was intentional, reckless, or malicious. The standard for awarding punitive damages is far beyond ordinary or simple negligence. Generally, punitive damage claims are appropriate only in cases involving willful and wanton or reckless negligence. For that reason, punitive damage awards are rare in personal injury cases.

Finally, the type of negligence by the at-fault party can affect application of the Virginia rule of pure contributory negligence. Under that rule — which applies in all personal injury cases based on negligence — an injured victim cannot recover if he or she contributed in any way to causing the accident.

Contributory negligence is a defense to a claim based on negligence or gross negligence. If the at-fault party demonstrates the victim's contributory negligence, the victim cannot recover compensation. However, if the injured victim can prove that the at-fault person’s negligence was willful and wanton, the at-fault person cannot rely on contributory negligence as a defense.

How the Type of Negligence Affects Your Case

If you suffered serious injuries in an accident that someone else caused, it is always in your best interest to talk with an experienced personal injury attorney. Your attorney will know the impact of all the negligence rules on the facts of your case. If your circumstances involve gross or willful and wanton negligence, your lawyer will explain what that means and how it affects the case.

The type of negligence in your case may affect settlement negotiations with the insurance company. Your attorney will know how to leverage the degree of negligence of the at-fault party during the settlement negotiations. If your case goes to trial, the type of negligence will be central to proving your case.

Talk With an Experienced Virginia Beach Personal Injury Lawyer

Jeffrey Brooke is a trusted, respected Virginia Beach attorney whose practice is dedicated to helping injured victims and their families. At The Jeff Brooke Team, we will always have your and your family’s interests at heart and aggressively pursue your case to get the full compensation you deserve. Contact us by phone at (757) 552-6055 or by using our online contact form.

Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one because someone else’s negligent and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm helps clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks.

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