Gross Negligence

  1. Introduction

    A claim for gross negligence would also be applicable in cases involving the breach of duty of care owed to the victim by a third party. In a gross negligence case, the third party would need to know or have reason to know that a high probability exists that his/her conduct will result in substantial harm to the victim/plaintiff. For example, this claim may be appropriate if a school was informed that a student secretly videotaped another student’s sexual encounters but failed to do anything about it, and subsequently, the harasser used a school computer to nonconsensually publish a sex tape involving the victim. Alternatively, the school might have knowledge that a student is harassing another student by publishing sex ads in the other student’s name, but fail to take steps to remedy the situation. The harasser might then use a school computer to publish an online ad in the victim’s name, containing the victim’s intimate images to solicit sexual encounters, resulting in the victim’s rape by a person answering the ad.

  2. Elements of a Claim

    In Nevada, “‘gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a prudent man’…and the difference between ordinary negligence and gross negligence is that they ‘differ in the degree of intention.’”1 “Gross negligence is substantially higher in magnitude than ordinary negligence…and is manifested by the absence of even slight diligence or want of even scant care, or a heedless and palpable violation of legal duty respecting the rights of others.”2 “‘A party is “grossly negligent” if he acts or fails to act when he knows or has reason to know facts which could lead a reasonable person to realize that his conduct not only creates unreasonable risk of bodily harm to others but also involves high probability that substantial harm will result.’”3

  3. Cases

    Research is ongoing.

  4. Practice Pointers

    Below are examples of what has been found to constitute gross negligence in Nevada:

    • In Solen v. Va., a case in which Plaintiff was badly injured when the tender of Defendant’s engine knocked him down as he walked along the railroad tracks, the Court found that moving “locomotives or cars through the streets at night, or on dark, stormy and windy days, without giving any signal, would be gross negligence.”4

    • In Reed v. Brackbill, a case involving Plaintiff prisoner with Hepatitis C, prison officials were not found to be grossly negligent for failing to provide Plaintiff with treatment because they regularly monitored his bilirubin levels and it was the opinion of various medical doctors that Plaintiff did not need to be treated.5

    • In Batt v. State, the Court found Defendant was not grossly negligent in an arson case where his girlfriend unilaterally ignited a firework in his presence that subsequently burned down part of a forest.6

  1. Batt v. State, 901 P.2d 664, 667 n.5 (Nev. 1995)(quoting Hart v. Kline, 116 P.2d 672, 674 (Nev. 1941)). 

  2. Id. (citing Town of Big Stone Gap v. Johnson, 35 S.E.2d 71, 73 (Va. 1945)). 

  3. Id. (citing Walls v. Ariz. Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991)). 

  4. Solen v. Va.  & Truckee R.R. Co., 13 Nev. 106, 122 (Nev. 1878)(emphasis in the original). 

  5. Reed v. Brackbill, 2008 U.S. Dist. LEXIS 83245 (D. Nev. July 2, 2008). 

  6. Batt v. State, 901 P.2d 664 (Nev. 1995).