The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Negligence, Gross

1 Elements and Case Citations

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.  The conduct alleged must rise to the level of ‘either a “‘“want of even scant care”’” or “‘“an extreme departure from the ordinary standard of conduct.”’”

Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1082 (2011).

The claim is, alternatively, sometimes called “willful and wanton negligence” or “reckless misconduct,” but is a separate cause of action for “aggravated negligence.”  Oppenheimer v. Southwest Airlines Co., No. 13-CV-260 - IEG (BGS), 2013 U.S. Dist. LEXIS 85633, at *3-4 (S.D. Cal. June 17, 2013).

CALIFORNIA STATE COURTS

Supreme Court of California:  City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 754 (2007).

California 1st District:  Manuel v. Pacific Gas & Electric Co., 173 Cal. App. 4th 927, 947 (2009) (gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results”); but see Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 766 n.9 (1990) (“In reality, California does not recognize a distinct cause of action for ‘gross negligence’ independent of a statutory basis”).

California 2d District:  Frittelli, Inc. v. 350 North Canon Drive, LP, 202 Cal. App. 4th 35, 52 (2011).

California 3d District:  Wood v. County of San Joaquin, 111 Cal. App. 4th 960, 971 (2003).

California 4thDistrict:  Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1082 (2011).

California 5th District:  White v. Berrenda Mesa Water Dist., 7 Cal. App. 3d 894, 901 (1970).

California 6th District:  None.

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th CircuitRoyal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1015 (9th Cir. 1999).

Central District:  Federal Deposit Ins. Co. v. Faigin, No.  CV 12-03448 DDP (CWx), 2013 U.S. Dist. LEXIS 94899, at *24-25 (C.D. Cal. July 8, 2013).

Eastern District:  Diamond State Ins. Co. v. Deardorff, No. 1:10-CV-004 AWI JLT, 2011 U.S. Dist. LEXIS 41347, at *52-53 (E.D. Cal. Apr. 15, 2011).

Northern District: Berman v. Knife River Corp., No. C 11-3698 PSG, 2012 U.S. Dist. LEXIS 25790, at *19 n.59 (N.D. Cal. Feb. 28, 2012).

Southern District:  Oppenheimer v. Southwest Airlines Co., No. 13-CV-260 - IEG (BGS), 2013 U.S. Dist. LEXIS 85633, at *3-4 (S.D. Cal. June 17, 2013)..

2 Issues and Defenses to Claim for Negligence, Gross

(1)  Statute of Limitations:  Same as negligence. See Ch. 48.

(2)  Release:  A validly signed release can result in the waiver of a claim for ordinary negligence, but not gross negligence.  Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1081 (2011).  “The principal rationale for refusing to enforce releases of liability for future gross negligence is that public policy should ‘“discourage” (or at least not facilitate) “aggravated wrongs.”’”  Eriksson v. Nunnink, 191 Cal. App. 4th 826, 855 (2011) (citing City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 762 & 766 (2007)).

(3)  Limitations on Governmental Immunity:  “[I]mmunity does not apply to ‘[a]n act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.’  Gross negligence is defined as ‘“the want of even scant care or an extreme departure from the ordinary standard of conduct.”’”  Wood v. County of San Joaquin, 111 Cal. App. 4th 960, 971 (2003).

(4)   See Affirmative Defenses to Negligence (Ch.48).