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  • Writer's pictureGregory Sandler


Claims for personal injury are often based on a theory of negligence on the part of one person that caused harm to another. In order to establish negligence, a plaintiff must demonstrate that the defendant had a duty to exercise reasonable care in the situation in question, and that he failed to do so.

The existence of a duty can be established in many ways. Federal, state, and local laws, for example, can place one under a duty. Traffic laws prohibit all sorts of actions by drivers, from speeding to making illegal u-turns. Failure to follow traffic laws represents a breach of a driver’s duty to follow the law. Common carriers such as transit authorities or taxi cab companies have imputed duties to protect their clients from harm. Public school administrators and teachers have substantial duties of care toward OUR CHILDREN! Property owners must follow building codes. The list can go on and on.

If a duty is breached, then it is time to consider whether negligence caused the breach, and the degree of negligence involved. In Virginia, negligence comes in three flavors: 1) simple or ordinary, 2) gross, and 3) willful, wanton, and reckless. Each of the three types can be a foundation for a claim of damages by an injured party. Willful, wanton, and reckless negligence can warrant a punitive damage award above and beyond a plaintiff’s actual damages.

Ordinary negligence is a failure to perform a duty by a wrongdoer who was unaware of the failure and any realization that his action or failure to act could cause harm to another. The failure may be an inadvertent act or simple forgetfulness. A homeowner who cuts a tree limb that strikes his neighbor’s car might be guilty of ordinary negligence. Keep in mind that negligence DOES NOT require that the wrongdoer INTENDED to cause harm. The old saying of “Stuff Happens” does not mean that there was no negligence involved in the happening or in causing the harm. “Stuff” does not JUST HAPPEN, it happens because someone, for some small time, does not do what is required.

Gross negligence can be found when a wrongdoer is indifferent about his actions to the extent that it represents an utter disregard for the rights or welfare of other people. There does not need to be any intent to do harm, just a lack of care as to whether harm to another might result. A car driver who operates ten miles per hour over the speed limit might be considered ordinarily negligent while one who drives at 100 miles per hour on a populated highway could be considered to have reached the grossly negligent level.

Willful, wanton, and reckless negligence is when a person fully intends to commit the negligent act and is well aware that it will likely cause harm to another. This person may not have any ill will toward a potential victim, but SIMPLY DOES NOT CARE that someone will be hurt. A chemical storage company that purposely drains dangerous chemicals onto the ground, which then enters the water table, could be considered to have committed this type of negligence. When someone drinks to an extent where intoxication is predictable and then drives a car, it may very well rise to the level of wilful, wanton conduct, and justify punitive damages against that drunk that causes injury. In fact, Virginia has a statute that provides just that. Va. Code § 8.01-44.5.

If you have been injured by someone else’s negligence, contact us long before you think you need a lawyer. If you feel that you have been injured, Call toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at or by email at

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