Gross Negligence and Willful Misconduct

Gross Negligence and Willful Misconduct

Gross Negligence

The standard of “gross negligence” may be used to raise the bar and tighten the trigger for imposing liability on a party for a particular act or failure to act, e.g., in contrast to the simple negligence standard. In order to differentiate gross negligence from simple negligence, the parties may attempt to define the gross negligence standard as follows:

Exemplar C36-1

For purposes of this Agreement, “gross negligence” shall mean: (1) willful, wanton, careless or reckless conduct, misconduct, failures, omissions, or disregard of the duty of care towards others of a risk known or so obvious that the actor must be taken to have been aware of it, and with an intent to injure or so great as to make it highly probable that harm would follow and/or (2) failure to use even the slightest amount of care, or conduct so reckless, as to demonstrate a substantial lack of concern for harm or damage to others. For the avoidance of doubt, gross negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence or simple inattention.

Exemplar C36-2

For purpose of this Agreement, “gross negligence” means the performance or failure to perform, by a Party, of a manifest duty at law (not being a contractual breach alone or at all) with a wanton and reckless disregard of the consequences of such failure as they may affect the life, property or rights of the other Party.

Willful Misconduct

The following exemplar includes a definition of “willful misconduct” that sets a high bar for establishing liability:

Exemplar C36-3

For purpose of this Agreement, “willful misconduct” means an action undertaken by a Party with the malicious intent to cause harm to the other Party.