Aggravated Negligence

“Degrees” of Care.It is obvious,and elementary,that the care required by the standard of the reasonable person will vary according to the risk.As the dan-ger increases,the actor is required to exercise caution commensurate with it,and so to be more careful.Those who deal with things that are known to be dangerous,such as explosives or electricity,must exercise more care than one who is merely walking down the street.Likewise,those who have accepted a special responsibi-l ity toward others,as in the case of a common carrier responsible for the safety of passengers,must exercise more care in accordance with the duty undertaken.On many occasions,this has been expressed in instructions to the jury,approved on appeal,that the carrier,or the person dealing with special danger,must exercise“the highest degree of care,” or “the utmost caution characteristic of very careful prudent persons.”

There are many other decisions in which this type of instruction has been held to be error,on the ground that there are no “degrees” of care recognized by the law,but merely amounts of care,greater or less;that the care required of the actor is always the same under the traditional formula,that of a reasonable person under like circumstances;and that the greater danger,or the greater responsibility,are merely circumstances that require a greater amount of care.

“Degrees” of Negligence.A different attempt,carried to considerable lengths in the last century,has been to distinguish “degrees” of negligence,breaking it down into different kinds of conduct,with different legal consequences.This idea was lifted from the Roman law by Chief Justice Holt in a bailment case,Coggs v.Bernard,2 Ld.Raym.909 (1704).As it developed,the distinction was made between “slight” negligence,defined as a failure to use great care;ordinary negligence,or failure to use reasonable care;and “gross” negligence,which is failure to exercise even slight care.

These distinctions were subjected to a good deal of criticism almost from the start.“Gross negligence” was an expression used to mean nothing more than negligence.But when it is intended to mean more,“gross” negligence is readily understood by the ordinary person as involving an extreme departure from ordinary standards of conduct,and it is very probable that Judge Magruder’s students at the Harvard Law School knew what he meant when he explained “Chief Justice Rugg’s famous distinctions among negligence,gross negligence and recklessness as being the distinctions among a fool,a damned fool,and a God-damned fool.” ….

Willful,wanton,and reckless conduct.Another distinction is made by some courts based on defendant’s state of mind.The effect is to establish an intermediate class of conduct,between negligence (including gross negligence) and intentional torts,which in some respects takes on the character of each.This type of conduct usually is defined as consisting of a deliberate and conscious disregard for a known high degree of probability of harm to another.This level of conduct is the threshold for punitive damages in many jurisdictions.See,e.g.,Hickingbotham v.Burke,140 N.H.28,662 A.2d 297 (1995) (recognizing cause of action for social host liability if service of alcohol was reckless) and Crawn v.Campo,136 N.J.494 (1994) (noting that majority of jurisdictions require plaintiff injured in recreational sports activity to prove that defendant’s conduct was reckless,not merely negligent,in order to recover.)