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Gross negligence: Difference between revisions
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{{a|tort|{{subtable|{{liability ladder}}}}}} | {{a|tort|{{subtable|{{liability ladder}}}}}} | ||
{{quote| | {{quote| | ||
“Even a serious lapse is not likely to be enough to engage the concept of gross negligence. One is moving beyond bad mistakes to mistakes which have a very serious and often a shocking or startling (cf. “jawdropping”) quality to them.” | “Even a serious lapse is not likely to be enough to engage the concept of gross negligence. One is moving beyond bad mistakes to mistakes which have a very serious and often a shocking or startling (cf. “jawdropping”) quality to them.” | ||
:—{{casenote|Federal Republic of Nigeria|JP Morgan Chase Bank}}}} | :—{{casenote|Federal Republic of Nigeria|JP Morgan Chase Bank}}}} | ||
===A fish out of water=== | |||
Here is a curious thing. The [[common law]] of [[tort]], from whose loamy soil the basic idea of negligence took root, has no concept of gross negligence. Tort polices those civil relations where the parties have not agreed in advance how they should treat each other: here there are no duties, so they must be inferred, and — by reference to that mythical figure on the Clapham Omnibus — the courts derived the [[standard of care]] a [[reasonable person]] owes to her [[neighbour]]s. Should you fall short of that, you have committed a tort. If you have not, you don’t. There is no “supermajority” over that, in [[tort]], whereupon you take a heightened liability. You have a duty of care; you either observe it or you don’t. | |||
''Gross'' negligence, therefore, exists only in the transplanted soil of contract: a place with no need for inferred duties of care ''at all''. SO we are already in a fairly weird place, which is why so many legal eagles are confused about it. | |||
''For an essay on the related question “why would one ''use'' negligence in a [[contract]] at all?” see the article about “[[contractual negligence]]”. For a short answer to that question try this: Unless one has an [[indemnity]], '''one shouldn’t'''.''` | |||
===A spiritually bankrupt concept=== | ===A spiritually bankrupt concept=== | ||
When negotiating to save the adjective “gross” from the oblivion it so richly deserves, your best tack — and it’s not great — is to say “look, if we muck up, we’re hardly going to stand on ceremony, are we? So don’t worry about the legal docs”. | When negotiating to save the adjective “gross” from the oblivion it so richly deserves, your best tack — and it’s not great — is to say “look, if we muck up, we’re hardly going to stand on ceremony, are we? So don’t worry about the legal docs”. | ||