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Gross negligence

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This presentation looks at the differences between states on how they define gross negligence and how a gross negligence claim affects release law.

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Gross negligence

  1. 1. Gross Negligence: It exists, now days seemingly everywhere; can you fight it with paperwork?
  4. 4. What is Gross Negligence
  5. 5. We Found 4 Definitions for Gross Negligence 1. Want of Scant Care 2. Equal to Willful and Wanton 3. Halfway between Negligence and Willful and wanton 4. No Difference: Ordinary, Gross or Willful and Wanton
  6. 6. California …want of even scant care or an extreme departure from the ordinary standard of conduct. City of Santa Barbara et al., v. The Superior Court of Santa Barbara County, 135 Cal. App. 4th 1345; 38 Cal. Rptr. 3d 434; 2006 Cal. App. LEXIS 84; 2006 Cal. Daily Op. Service 775; 2006 Daily Journal DAR 1075
  7. 7. Kentucky Under Kentucky law, "wilful and wanton negligence" is "substantially the equivalent of 'gross negligence' Dones v. Super Service Inc. 2006 Ky. App. Unpub. LEXIS 389 (Ky. App. 2006)
  8. 8. New Jersey Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct. Steinberg v. Oasis, 2014 N.J. Super. Unpub. LEXIS 2594,
  9. 9. New Hampshire New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. "[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law. Barnes v. New Hampshire Karting Association. 509 A.2d 151 (N.H. 1986)
  10. 10. 44 Definitions of Gross Negligence No levels Want of Even Scant Care Willful & Wanton Negligence Between Ordinary & Willful & Wanton
  11. 11. Releases Are Contracts *Meeting of the Minds *Acceptable for Ordinary negligence *Rarely Accepted for Gross Negligence
  12. 12. Heiman v. Mayfield, 686 S.E. 2d 284 (Ga. App. 2009) Exculpatory clauses in which a business relieves itself from its own negligence are valid and binding in this State and are not void as against public policy unless they purport to relieve liability for acts of gross negligence or willful or wanton conduct.
  13. 13. Hawaii …to allow an exculpatory clause to extend to gross negligence would violate the public interest, rendering the clause void. Courbat v. Dahana Ranch., 141 P 3d 427 (Haw. 2006)
  14. 14. Releases Are Void in Some States
  15. 15. States were Releases are Void or Subject to kinds of Acts Release is Void Depends on Activity
  16. 16. Those States where a Release stops a Claim for Gross Negligence
  17. 17. Claims for Gross Negligence In some states where is no difference between a claim for ordinary negligence or greater than ordinary negligence Effectively in those states then, a release stops a claim for Gross Negligence
  18. 18. States where Gross Negligence Claims are Stopped
  19. 19. States were a release does not stop a Claim for Gross Negligence are in Green 3 States allow a release to stop a claim for Gross Negligence
  20. 20. Kentucky The Sixth Circuit has held that, under Kentucky law, an agreement releasing a race track owner from liability only bars claims for ordinary or gross negligence, and not for wanton or willful negligence. Cahill v. Earlywine Racing, 2008 Ky. App. Unpub. LEXIS 590 (Ky. App. 2008)
  21. 21. 6th Circuit Court of Appeals Under Kentucky law, one party to a contract may agree to release the other from liability for ordinary or gross negligence. Donegan, v. Beech Bend Raceway Park, Inc., 894 F.2d 205; 1990 U.S. App. LEXIS 735
  22. 22. Florida Theis v. J.J.Racing Promotions, 571 So.2d 92 (Fla. App. 1990) Deboer v. Florida Offroaders Driver’s Association., 622 So. 2d 1124 (Fla. App. 1993)
  23. 23. Illinois Maness v. Santa Fe Park Enterprises, 700 N.E. 2d 194 (Ill. App. 1998)
  24. 24. Every Case Release was signed for a motorized race All were either racers or spectators at an event
  25. 25. No other Cases have been Found We found no other cases in any other state or for any other sport or activity were a release was used to stop a claim for gross negligence
  26. 26. NASCAR Rule If the state has NASCAR the state supports release law