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37 Marq. L. Rev. 334 (1953-1954)
An Analysis of Gross Negligence

handle is hein.journals/marqlr37 and id is 340 raw text is: AN ANALYSIS OF GROSS NEGLIGENCE INTRODUCTION Gross negligence is both historically and contemporaneously an important segment of our American tort and contract law. Yet, when one attempts to define gross negligence, the concept shatters into a kaleidoscopic disarray of terms, elements and subtle graduations of meaning. It is a legal Tower of Babel, where many voices are heard, but few are really understood.' Negligence itself is an elastic term which is not confined within strict bounds.2 It is relative as to circumstance, place and person, and what may be negligence as to one person may not be negligence as to another.3 It is basically a failure to excercise the degree of care de- manded by the circumstances,4 or a failure to use the care which an ordinarily prudent man would use under the circumstances.5 It has also been said to be conduct which falls below the standard established by law for the protection of others against unreasonably great risk of harm.6 However, some jurisdictions, though affirming a certain relativity in negligence, have attempted to set up distinct guide-posts of liability by adopting the theory of the three degrees of negligence, or its pos- itive counterpart the three degrees of care.7 Slight negligence has been defined as an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use.s Ordinary negligence, though variously defined, is fundament- ally a failure to exercise such care as the great mass of mankind ex- ercise under the same or similar circumstances.9 Gross negligence has been defined as a want of even slight care,20 failure to exercise 'Steamboat New World v. King, 16 How. 469, 14 L. Ed. 1019, 1021 (1853); Raymond v. Portland R. Co., 100 Me. 529, 62 A. 602, 605 (1905); Oliver v. Kantor, 122 N.J. Eq. 205, 6 A. 2d 205, 207 (1939); HARPER, TORTS 176 (1933) ; PoL.ocK, TORTS 457 (13th ed. 1929) ; PROSSE, TORTS 258 (1941). 2 Lynch v. Lynch, 9 W. W. Harr. 1, 195 A. 799, 802 (Del. 1938) ; Esposito v. St George Swimming Club, 255 N.Y.S. 794, 801, 143 Misc. 15 (1932); 65 C.J.S. NEGLIGENCE §1; 1 SHEARMAN and REDFIELD, NEGLIGENCE §2 (Zipp., 1941). Contra: Wittstruck v. Lee, 252 N.W. 874, 877 (S.D. 1934). 8 Shannon v. Thomas, 57 Cal. App. 2d 187, 134 P. 2d 522, 528 (1943) ; Kent v. Miller, 167 Va. 422, 189 S.E. 332, 334 (1937). 4 Reese v. Philadelphia & R. R. Co., 239 U.S. 463 (1915) ; Webber v. Pinyan, 9 Cal. 2d 226, 70 P. 2d 183 (1937) ; Harker v. Burlington C. R. & N. R. Co., 88 Iowa 409, 55 N.W. 316 (1893). 5Hewlett v. Schadel, 68 F. 2d 502 (1934); Yocum v. Holmes, 258 S.W. 2d 535 (Ark. 1953); Picket v. Waldorf System, 241 Mass. 569, 136 N.E. 64 (1922). 6RESTATEMENT, TORTS §282 (1934) ; PROSSER, TORTS 175 (1941). 7 See, e.g., 20 R.C.L. §16; 65 C.J.S. NEGLIGENCE §8. 8 Dreher v. Fitchburg, 22 Wis. 675, 677 (1868). 9 Clemens v. State, 176 Wis. 289, 185 N.W. 209, 212 (1921). '0 Krause v. Rarity, 210 Cal. 644, 293 P. 62, 66 (1930) ; Louisville & N. R. Co. v. George, 279 Ky. 24, 129 S.W. 2d 986, 988 (1939); Johnson v. State, 66 Ohio St 59, 63 N.E. 607, 609 (1902).

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