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Legal Memorandum: Definition of "Gross Negligence" in VI

Issue: What is the definition of ‘gross negligence’ under Virgin Islands law?

Area of Law: Personal Injury & Negligence
Keywords: Gross negligence; Definition
Jurisdiction: Federal, Virgin Islands
Cited Cases: 104 Vt. 529; 921 F.2d 459; 312 U.S. 492; 828 A.2d 343; 407 P.2d 798; 534 A.2d 448
Cited Statutes: 20 V.I.C. § 555; Fed. R. Civ. P. 8; Fed. R. Civ. P. 9; Restatement (Second) of Torts § 282; 1 V.I.C. § 4
Date: 05/01/2007

20 V.I.C. § 555 caps non-economic damages for injuries to a person arising out of a motor vehicle accident at $75,000, unless there is a “finding of gross negligence or willful conduct.”  20 V.I.C. § 555(a). 

See Fed. R. Civ. P. 8.  Gross negligence is not a “special matter” that must be pleaded with particularity.  Fed. R. Civ. P. 9.

It is black-letter law that “[d]egrees of negligence are matters of proof and not of averment; therefore, a general allegation of negligence is sufficient whether the defendant is liable for ordinary or gross negligence.”  65A C.J.S. Negligence § 680 (2000).  See, e.g., Kizer v. Bowman, 124 S.E.2d 543, 547 (N.C. 1962) (same).

No Virgin Islands case was located defining the term for purposes of this statute.  On the other hand, the Third Circuit Court of Appeals has had occasion to define the term gross negligence when a state statute uses the term but fails to include a statutory definition.  See Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 462 (3d Cir. 1990).  When the statute does not define gross negligence and there is no other indication of legislative intent, the correct course for the court is to apply “the generally accepted meaning of the term.”[1]  Id. at 462.  The court of appeals adopted the following definition of gross negligence:

Gross negligence generally signifies a greater want of care than is implied by ordinary negligence, which in turn means no more […]

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