Release, Public Policy, Gross Negligence, Summary Judgment Burdens, 1, 4
If the plaintiff in a personal injury suit alleges a gross negligence claim to avoid his pre-accident release of the defendant, the defendant in moving for summary judgment bears the burden of establishing it was not grossly negligent. However, if the complaint alleges a simple negligence claim without mentioning the release, in moving for summary judgment, the defendant bears only the burden of establishing the release, while the plaintiff then bears the burden of raising a triable issue of fact regarding gross negligence. Merely stating in the complaint that defendant’s acts or omissions were wanton, reckless, or the like is not enough to state a gross negligence claim for purposes of these rules.