Negligence is the primary question personal injury claims ask in West Virginia. Was the defendant negligent, and did this cause the plaintiff’s injuries? To have grounds to file a personal injury lawsuit, the injured party must have proof of the defendant’s fault. There is ordinary negligence and gross negligence. From a legal standpoint, the two have different meanings and consequences. A defendant could face more severe penalties for gross negligence. If you were recently injured in an accident in West Virginia, find out which type of negligence may apply to your case, as well as how this might affect your outcome, with help from a West Virginia injury lawyer.

Ordinary Negligence vs. Gross Negligence

Ordinary negligence is the failure to meet the standard of care. It can refer to a careless or intentional breach of someone’s duties of care. If someone else in the same position as the at-fault party would have done something differently and prevented the accident, the defendant could be guilty of negligence. Negligence does not refer to a criminal act. Instead, it is a civil tort in which someone does not exercise a reasonable degree of care. Proving ordinary negligence requires evidence of four main elements in West Virginia.

  1. Duty of care. The defendant owed the injured person a duty – such as a legal or ethical duty – of care at the time of the accident. A person’s duties of care can vary according to his or her relationship to the plaintiff.
  2. Breach of the duty of care. A breach, or failure to fulfill, the defendant’s duties of care to the plaintiff, or the actual act of negligence. Anything an ordinary, reasonable and prudent person would not have done in similar circumstances could constitute a breach.
  3. Cause in fact of the accident. The defendant’s breach of duty must be the actual cause, or cause in fact, of the plaintiff’s accident and injuries. In other words, the plaintiff’s injuries would not have happened but for the defendant’s negligence.
  4. Damages accrued. The plaintiff must have compensable losses, or damages, due to the defendant’s breach of duty of care. These losses can include hospital bills and medical expenses, lost wages, physical pain, and emotional suffering.

Gross negligence is a step beyond ordinary negligence in terms of torts. It is a more serious type of wrongdoing that describes extreme carelessness or a wanton disregard for the safety of others. It goes beyond simply breaching a duty of care and into the territory of recklessness or willful behavior. Gross negligence can describe doing something (or failing to do something) despite knowing that the conduct is likely to cause foreseeable harm to the health, safety or wellbeing of others. Gross negligence is a severe tort that can have major consequences for a defendant.

Common Examples of Both Types of Negligence

Ordinary negligence is the failure to keep someone else safe from an incidental situation – often unintentionally or carelessly. Examples of ordinary negligence include failing to put up a “No Diving” sign at a shallow pool, forgetting to inspect a property for slip and fall hazards, a pilot deciding to fly in bad weather, and a driver running a stop sign. Gross negligence describes reckless or intentional misconduct. Gross negligence can take many forms in West Virginia.

  • A driver getting behind the wheel after drinking several alcoholic beverages.
  • A driver racing in a school zone, residential area or place with a lot of pedestrians.
  • A surgeon operating on the wrong patient or part of the body.
  • A nursing home staff member withholding food and water from a resident for several days.
  • A product manufacturer releasing a known defective and dangerous product.

The major difference between ordinary and gross negligence is the intentions of the defendant, as well as the severity of the negative consequences the victim suffers. Negligence is a complicated legal doctrine that can be difficult to understand without a lawyer’s assistance. If you are curious whether you have been the victim of ordinary or gross negligence, consult with a West Virginia accident lawyer about your specific case. 

Gross Negligence and Personal Injury Claims in West Virginia

Determining whether or not you have been the victim of gross negligence can be important for your personal injury claim in West Virginia. The civil courts will handle each type of case differently. If someone committed an act or omission that was grossly negligent, malicious, fraudulent, reckless or wanton, that person may owe you more money in compensation for your losses. First, gross negligence may have given you even more severe damages and losses than ordinary negligence. Second, the judge or jury on your case may award punitive, or exemplary, damages to punish the defendant for his or her actions.

Punitive damages are something a judge may give you on top of compensatory damages. Where compensatory damages serve to reimburse you for your losses, punitive damages serve to penalize the defendant. The goal of a punitive damage award is to punish the defendant for creating the aggravating circumstances that significantly harmed the plaintiff. They also aim to prevent the wrongdoer – and others in the community – from committing the same offense in the future. The court has full discretion over how much to award a plaintiff in punitive damages in West Virginia, up to the state’s cap. You cannot recover more than $500,000 or four times the amount of your compensatory damages (whichever is greater) in punitive damages.

To receive punitive damages, you or your attorney must use clear and convincing evidence to establish that the defendant was grossly negligent, acted with a conscious reckless and outrageous indifference to the safety of others, or acted with malice toward you. The court will examine the evidence presented and determine if it is enough to qualify you for punitive damages. If so, the courts will award you an amount – up to the state’s maximum – that is reasonable based on the defendant’s actions and your related losses. Note that you cannot receive punitive damages without also recovering compensatory damages.

Does Your Case Involve Gross Negligence?

If you have serious injuries from a recent accident in West Virginia, talk to an attorney about your case. Should the defendant’s actions qualify as gross negligence, not just ordinary negligence, you could be eligible for a higher financial award. The lawyers at Manchin Injury Law Group can help you with an ordinary negligence or gross negligence case. Contact us today for a free case evaluation near you.

Attorney Timothy Manchin established the Manchin Injury Law Group in 2011 after his law partner of more than 25 years became a West Virginia circuit court judge. His focus is on helping individual clients and entire families victimized by negligent acts.

  • Taylor Downs was easy to talk to (I do not speak the legal language well!) and was very upfront and honest about the entire process of my case. He kept me updated as the case progressed, and answered my relentless questions. The end result was a favorable settlement that I’m not sure could have been any better with anyone else. In short, go see Taylor if you have a case. Don’t be intimidated to go seek his help, he won’t blow your brains out with “legal speak”.


  • Being referred to Taylor was the best thing I could have asked for. Taylor and staff are very easy to talk to. I would highly recommend them to anyone.


  • If I ever have to go through it again I would definetly call Taylor right away. The group was so helpful through my situation and handled everything that needed to be done. They made a stressful situation a stress free situation. With Taylor you dont have to worry about one thing. Definietly would recomend to anyone.

    - TAYLOR G.

  • Efficient, knowledgeable, and friendly.


  • Taylor and Tim helped make a difficult moment in life, a little more bearable. Easy to communicate with and informative. I will absolutely recommend them to everyone.


  • Manchin Injury Law Group, Took care of me when I got into a car accident while I was pregnant. Very scary moment for a first time mom but thankfully Manchin Injury Law Group had my back and treated me great. They made me feel as if I was part of their family. My son is now 7 Months Old and very happy and healthy. I’m very thankful for them for helping me through everything and getting me what we deserved. I 100% would recommend them to anyone. If I ever have an accident again they will be my number 1 phone call!


  • The support given helped me to feel like I was included in my personal injury case every step of the way. I was informed about the entire process throughout. It was amazing how quick the turn around time was and I would definitely recommend Attorney Timothy J. Manchin to anyone!


  • Taylor and Kelly worked hard on my case so I didn’t have to. Thanks guys!


  • Excellent experience dealing with Manchin Injury Law. They were very responsive, professional and easy to talk to. I did my homework before I hired a lawyer after my accident and I am so glad I found Manchin Injury Law Group. If you are injured, give them a call!


  • Taylor and Tim helped make a difficult moment in life, a little more bearable. Easy to communicate with and informative. I will absolutely recommend them to everyone.


  • Kelly and Taylor did all the hard work so that I didn’t have to. They both cared about my circumstance and got me a nice settlement. Taylor knows what he is doing and I felt comfortable with my case in his hands.


  • Great lawyers. They helped me with a West Virginia case.


  • Such a great experience with Taylor and this firm. Thankful for their diligence and their work on our case. Thank you to all!


  • Had a easy and smooth experience with a great attorney so when you go there make sure you ask for Taylor.


  • My experience at the Manchin Injury Law Group was extremely positive, and I would recommend them to anyone who needs a compassionate and experienced lawyer on their side.


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