Negligence, Gross Negligence, and Willful and Wanton Negligence – What is the Difference and Why Does it Matter?

by Sophia M. Brasseux, Esq.

There are three types of negligence recognized in the Commonwealth of Virginia: negligence, gross negligence, and willful and wanton negligence. The distinctions between these levels of negligence are important because each level may carry differing legal implications and consequences for the offending party.

The standard for negligence or “simple” negligence is highly fact dependent and can vary based on factors such as location or the relationship between the parties involved. Generally, negligence is the failure to use the degree of care an ordinarily prudent person would under the same circumstances. Whether a party exercised a reasonable degree of care is typically a question of fact to be decided by a jury. Judges are often hesitant to dismiss simple negligence claims in the early stages of litigation prior to allowing the parties an opportunity to participate in discovery.

Whereas simple negligence is the failure to exercise a reasonable degree of care, gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other persons.” Commonwealth v. Giddens, 295 Va. 607, 613 (2018) (citations omitted). Gross negligence requires a degree of negligence that would “shock fair-minded persons.” Id. at 614. Importantly, Virginia’s standard for gross negligence is one of indifference, not inadequacy. Id. Therefore, where evidence reveals the offending party exercised some degree of care, a claim for gross negligence fails as a matter of law. Id.

While establishing gross negligence alone does not entitle a party to any additional damages, in some instances, a showing of gross negligence can expose an offending party to heightened levels of liability or limit his ability to put forth certain defenses. For example, Virginia Code § 15.2-1809 protects cities or towns operating parks and recreational facilities from liability for damages resulting from personal injury arising from the maintenance or operation of such facilities. However, under this statute, a city or town is liable for the gross negligence of any of its officers or agents.

Willful and wanton negligence is the highest degree of negligence in Virginia. “Willful or wanton conduct is defined as “action undertaken in conscious disregard of another’s rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Miller v. P.G. Harris Constr. Co, 79 Va. Cir. 631, 632 (Norfolk 2009). While gross negligence requires a showing that a party was indifferent to the safety of others, willful and wanton negligence requires a showing that the offending party knew or should have known his actions would likely cause injury.

When willful and wanton negligence is established, a party may be entitled to punitive damages. Unlike compensatory damages, which compensate an injured party for the losses suffered due to an offender’s wrongdoing, punitive damages are intended to punish the offender and deter him from committing the conduct in the future. Because punitive damages are penal in nature, they are not favored by courts and can only be awarded in cases involving “the most egregious conduct.” See A.H. v. Church of God in Christ, Inc., 297 Va. 604, 637 (2019) (citing Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992)). “Where the act or omission complained is free from fraud, malice, oppression, or other special motives of aggravation, damages by way of punishment cannot be awarded, and compensatory damages are only permissible.” Id. (quoting Wright v. Everett, 197 Va. 608, 615 (1956)). Punitive damages cannot be awarded on the basis of vicarious liability unless evidence shows the employer authorized, ratified, or participated in the willful and wanton conduct at issue. Id. (quoting Egan v. Butler, 290 Va. 62, 74 (2015)). Unlike compensatory damages, which are not capped, in Virginia, punitive damages are capped at $350,000.00, even where a jury returns a verdict in excess of that maximum. See Va. Code § 8.01-38.1.

When possible, it can be beneficial to seek dismissal of claims for gross negligence, willful and wanton negligence, and/or punitive damages early in litigation. Though it can be challenging to obtain dismissals of any claim on demurrer, due to the additional elements necessary to establish claims for gross negligence and willful and wanton negligence, courts are more likely to dismiss these claims than claims for simple negligence. For example, if the allegations in a plaintiff’s complaint do not establish that a party acted with “fraud, malice, oppression, or other aggravating motives,” that plaintiff’s punitive negligence claim fails as a matter of law. Narrowing down pending claims early in litigation can help all parties effectively use their time and resources to address the facts and legal issues at the heart of the matter and obtain the best possible outcome.