GROSS NEGLIGENCE—WHAT’S IT GOOD FOR ANYWAY?

Gross negligence and ordinary negligence both fall within RCW 4.22.015’s definition of fault.  RCW 4.22.070 requires the jury to compare and allocate fault to every one whose fault proximate my caused harm.  So, gross negligence is treated essentially like ordinary negligence in terms of dividing up responsibility for an accident.  So why even distinguish between ordinary and gross negligence?

The magic of gross negligenceat least from my perspectivecomes when there is a release (sometimes called a liability waiver).  These are signed before all sorts of events and unless there’s a loophole they bar any personal injury claims.  That means even if there’s negligence, an injured person can’t sue for it.  

And that’s where gross negligence comes into play.  Gross negligence is an amplified form of negligence.  And the magic is that unlike negligence, a liability waiver can’t release claims for gross negligence.
It’s important to not only plead gross negligence in a complaint when a liability waiver or release is involved but also be able to articulate (usually through an expert) why the conduct at issue constituted gross rather than ordinary negligence.

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