Gross Negligence

Posted Thursday, October 13, 2016 by Ed Harper

According to the Washington Pattern Instructions, WPI 10.07, gross negligence is the failure to exercise slight care. This is negligence (not intentional) that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care, but care substantially less than ordinary care.

Thus, for gross negligence to be found, on the continuum of reasonable care with the highest care at the top, gross negligence is just above an intentional act to do or not do something.

In Nist v. Tudor, 67 Wn.2d 322 (1965), a passenger sued her friend and driver, Mrs. Tudor for failing to exercise slight care (gross negligence) when Mrs. Tudor turned left in front of another car which she knew was coming but failed to see the other car immediately before the wreck. “Her acts and omissions in turning suddenly into so obvious a danger supplied evidence from which a jury could well infer that she acted in the exercise of so small a degree of care under the circumstances as to be substantially and appreciably more negligence than ordinary, and hence could be held guilty of gross or great negligence.” Nist, at 332.

The court reasoned that there can be no issue unless there is substantial evidence of serious negligence (failing to do something or not do something). Therefore in the Nist case, the court should have allowed the jury to determine this as a factual question with the proper instructions.

Why is this important? In days gone by, Washington abided by a Guest-Host statute which initially required intentional conduct causing injury by the host driver as a prerequisite to being sued. In 1957 the legislature reduced the standard, and allowed a host driver to be sued when they exhibited grossly negligent conduct. Thus, a host could be sued when they failed to exhibit even slight care for the safety of their guests/passengers. In 1974 the legislature abolished this Guest-Host statute and allowed mere negligence (failure to exhibit ordinary care) to be utilized as the standard the driver would have to abide by. However, the precedential value of these cases still impacts our view of this jury instruction today.

Often this term needs to be defined for purposes of a particular case. In instances of a limitation of liability clause waiver (often signed before the participation in a sporting activity) gross negligence can be used to overturn the release. See Blide v. Rainier Mountaineering, Inc. 30 Wn.App. 571, 574 (1981). Or, in cases of discovery abuse, gross negligence of one of the parties in preserving evidence can lead to a discovery sanction against them.

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