Written by Randall C. Lenhart, Jr., Esq.
Edited by Willian J. Pfund, Esq.
Two individuals walk into a bar. You would have thought at least one of them would have ducked. Nevertheless, they both filed separate actions against the owner of the premises asserting negligence claims for creating a hazardous condition and failing to warn of the dangerous condition. In one of the cases the plaintiff asserted that the owner’s negligent conduct was grossly negligent and willful and wanton while the other plaintiff asserted that the owner acted with simple negligence. Does it matter? It could because Virginia law recognizes different types of negligence and the type of negligence claim asserted can affect the damages awarded to a plaintiff, the claims a plaintiff may assert and the defenses that are available to a defendant.
The three types of negligence are (1) ordinary or simple negligence, (2) gross negligence, and (3) willful and wanton negligence. Virginia also recognizes negligence per se claims.
Ordinary or simple negligence is a failure to use that degree of care which an ordinarily prudent person would exercise under the circumstances to avoid injury to another. Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957). Gross negligence is an utter disregard of prudence amounting to complete neglect of the safety of another. It must be such a degree of negligence as would shock fair minded men although something less than willful recklessness. Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis omitted).
Willful and wanton negligence on the other hand is acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Woods v. Mendez, 265 Va. 68, 76-77 (2003). The difference between ordinary negligence and gross negligence is one of degree. But the difference between any form of negligence and causes of action for willful and wanton negligence is a matter of kind. Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 582, 391 S.E.2d 322, 327 (1990). “Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission. Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955).
In our hypothetical, if there was a Virginia ordinance or building code that regulated the height or condition of the bar or access to the bar area by patrons, then the potential for a negligence per se claim could exist if the requisite conditions were met.
DAMAGES
In Virginia, compensatory damages may be awarded to a plaintiff regardless of the type of negligence alleged in the case. However, punitive damages, which are currently capped at $350,000 in Virginia, are damages that go beyond fully compensating the plaintiff and are awarded for the protection of the public, as a punishment to defendant, and as a warning and example to deter him and others from committing like offenses.” Doe v. Isaacs, 265 Va. 531, 536 (2003). Punitive damages are allowable only where there is misconduct or malice, or such recklessness or negligence on the part of the defendant which shows a conscious disregard of the rights of others such as in the case of willful and wanton negligence. A gross negligence claim may in some cases also support an award of punitive damages if the evidence is sufficient to show willful and wanton conduct. Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101-02 (1997). But where the act or omission complained of is free from fraud, malice or oppression, such as in an ordinary negligence claim, punitive damages are not available to the plaintiff.
CLAIMS
In certain circumstances a plaintiff may be barred from asserting certain claims unless gross negligence or willful and wanton negligence is alleged in the Complaint. For instance, a charitable institution in Virginia is immune from liability to its beneficiaries for ordinary negligence arising from acts of its servants and agents if due care has been exercised in their selection and retention. Bailey v. Lancaster Ruritan Rec. Ctr., Inc., 256 Va. 221, 224, 504 S.E.2d 621, 622 (1998). However, the shield of charitable immunity does not extend to liability to its beneficiaries for acts of gross negligence or willful and wanton negligence. Doe v. Isaacs, 265 Va. 531, 536 (2003). Likewise, sovereign immunity protects employees of certain governmental entities for acts of ordinary negligence but not for acts of gross negligence. Colby v. Boyden, 241 Va. 125, 128, 400 S.E.2d 184, 186 (1991).
DEFENSES
Finally, there is a general rule in Virginia that a defendant who is guilty of willful and wanton negligence cannot rely upon contributory negligence as a defense. Thomas v. Snow, 162 Va. 654, 660-61, 174 S.E. 837, 840 (1934). However, contributory negligence can still be used as a defense in ordinary negligence, gross negligence and negligence per se cases.
In our hypothetical, if both plaintiffs sought punitive damages against the premises owner in their Complaints, then it is likely that only the plaintiff that alleged gross negligence and willful and wanton conduct would survive a challenge to the punitive damages claim because punitive damages are not available in a case of simple negligence. Likewise, if the premises owner was a charitable institution, then only the case where the plaintiff alleged gross negligence and willful and wanton conduct would survive. Lastly, if the jury determined that the owner’s conduct was willful and wanton, then the important defense of contributory negligence, which is a complete bar to a plaintiff’s claim in Virginia, would likely not be available to the owner. But the defense would be available to the owner in the case where the plaintiff never asserted that the owner’s conduct was willful and wanton.