What Is the Difference Between Ordinary and Gross Negligence in Georgia?
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Ordinary negligence is the absence of the care “exercised by ordinarily prudent persons under the same or similar circumstances” (O.C.G.A. § 51-1-2). Gross negligence is the absence of even slight diligence, “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances” (§ 51-1-4). The difference matters for liability waivers and for statutes that require gross negligence, but not for punitive damages: the Supreme Court of Georgia has held that “Negligence, even gross negligence, is inadequate to support a punitive damage award”.
Georgia’s three degrees of diligence
| Degree of diligence | Definition | Its absence is |
|---|---|---|
| Extraordinary (§ 51-1-3) | "That extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances" | Slight negligence |
| Ordinary (§ 51-1-2) | "That degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances" | Ordinary negligence |
| Slight (§ 51-1-4) | "That degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances" | Gross negligence |
Gross negligence is defined by the missing slight diligence, not by intent or recklessness. Conscious indifference to consequences is a different standard, the one used for punitive damages.
Where the difference changes the result
| Setting | Ordinary negligence | Gross negligence |
|---|---|---|
| A signed exculpatory agreement | Can be released by agreement; McFann v. Sky Warriors, Inc. (2004), quoting My Fair Lady of Georgia v. Harris (1987), describes exculpatory clauses as "valid and binding" when a business relieves itself from its own negligence | Under McFann, quoting Colonial Properties Realty v. Lowder Construction Co., exculpatory clauses "do not relieve a party from liability for acts of gross negligence or wilful or wanton conduct" |
| Emergency medical care in a hospital emergency department or obstetrical unit, or in a surgical suite immediately after emergency department treatment | Not enough | Required, proved by clear and convincing evidence (§ 51-1-29.5(c)) |
| Punitive damages | Not enough | Also not enough by itself (Colonial Pipeline Co. v. Brown, 1988) |
McFann: an aerial combat flight and a release
The widows of two pilots killed when a wing separated from a Sky Warriors aircraft during a simulated aerial combat flight sued despite releases the pilots had signed. The Court of Appeals held that “in Georgia a party may not obtain an exculpatory agreement for its gross negligence or wilful misconduct”, found a jury question on whether the company’s handling of a wing inspection reached that level, and reversed summary judgment. Two of the three judges concurred in the judgment only; the gross negligence rule the opinion applied came from earlier decisions it quoted.
Punitive damages need more
Punitive damages require clear and convincing evidence of “wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences” (§ 51-12-5.1(b)). Colonial Pipeline Co. v. Brown makes the point directly: “Negligence, even gross negligence, is inadequate to support a punitive damage award”. How punitive damages work, and their caps, is explained in when you can recover punitive damages in Georgia.
Questions that place conduct on the scale
- Did a statute or contract set the required degree of care (ordinary, slight, or extraordinary)?
- Did the person sign a release, and does it reach gross negligence?
- Is the claim about emergency medical care covered by § 51-1-29.5?
- Is there evidence of conscious indifference, which is what punitive damages need?
The ordinary standard itself is explained in the reasonable person standard.
Sources
- O.C.G.A. §§ 51-1-2, 51-1-3, 51-1-4, 51-1-29.5, 51-12-5.1 (§§ 51-1-2 through 51-1-4 text as published in October 2016 on a mirror site; no amendment recorded in the 2022 to 2026 legislative summaries).
- McFann v. Sky Warriors, Inc., 268 Ga. App. 750 (2004)
- Colonial Pipeline Co. v. Brown, 258 Ga. 115 (1988)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.