Proving Gross Negligence Michigan
To establish gross negligence, the following elements must be proven:
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
(3) the omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. McCoy, supra at 503.
In People v. Datema, 448 Mich 585, 606; 533 NW2d 272 (1995) at 604, the Supreme Court explained:
Criminal intention anchors one end of the spectrum and negligence anchors the other. Intention . . . "emphasizes that the actor seeks the proscribed harm not in the sense that he desires it, but in the sense that he has chosen it, he has decided to bring it into being." Negligence, lying at the opposite end of the spectrum, "implies inadvertence, i.e., that the defendant was completely unaware of the dangerousness of this behavior although actually it was unreasonably increasing the risk of occurrence of an injury."
Criminal negligence, also referred to as gross negligence, lies within the extremes of intention and negligence. As with intention, the actor realizes the risk of his behavior and consciously decides to create that risk. As with negligence, however, the actor does not seek to cause harm, but is simply "recklessly or wantonly indifferent to the results."