How “Recklessness” Affects Personal Injury Cases

Recklessness is conduct that is more than just carelessness, incompetence, or a failure to take precautions against harm to others.

It is a deliberate disregard of the high probability that an injury will occur and is a conscious choice of a deliberate course of action that the defendant knows involves serious danger to others1.

Elements Of Recklessness

Whether someone is guilty of or has exhibited reckless conduct is a question for the trier-of-fact who must decide if the defendant had knowledge that dangerous consequences will result from his or her conduct but nonetheless acts with disregard of the probable consequences2.

There are generally 4 elements to a civil charge of reckless conduct:

  1. The defendant had the intent to commit to a certain course of conduct knowing that it may create a high risk of harm
  2. The risk created was an unreasonable one
  3. The risk was significantly greater than ordinary negligence
  4. The defendant knew or should have known that other persons were present and expose to a high risk of harm
Examples Of Recklessness

Difference Between Recklessness and Negligence

Recklessness and negligence are similar in that the actor engaged in an activity that had some probability of causing harm.

With reckless conduct, that probability was heightened because of the extreme nature of the conduct. 

Acting Recklessly

But the major difference between the two concepts is that a defendant who is acting recklessly does so with knowledge of the risk that his/her actions involves. In other words, the actor is aware of what he is doing, knows that his actions carry a high likelihood of causing harm, but engages in the act regardless. 

What Is Acting Negligently?

A defendant who acts negligently may be unaware that his actions are risky even if he should have been aware in the exercise of ordinary care. If your actions are performed incompetently, you may have done so thinking that that you were acting in a competent manner.

Or, you may have been unaware that your conduct was negligent. For instance, if you saw a traffic sign or red traffic light ahead but upon approaching looked out your side window at something and failed to stop at the stop sign or red traffic light, then you did not willfully fail to stop but did so carelessly. A person in similar circumstances acting as a reasonably cautious driver and using due care would have been focused on the roadway and the stop sign or red light. 

What Is A Willful & Wanton Disregard?

It is when your actions demonstrate a willful and wanton disregard for safety that it rises to the level of recklessness. If you were approaching the stop sign or red light and felt you could cross it without concern about hitting another car and did not bother to stop and collided with another vehicle, then your actions could be construed as reckless. This is still an unintentional act since you likely lacked the intent to harm someone and was just taking a risk that any reasonable person would interpret as unreasonable. 

A DUI can be considered reckless driving since you should know that driving while under the influence affects judgment and driving ability but you nonetheless became intoxicated and made the decision to drive3.

Potential Damages Awarded for Recklessness

If a defendant is found reckless in causing injuries to someone, then the trier-of-fact may award damages to the victim. An allegation of recklessness is generally included in any negligence cause of action. 

 Damages may include:

  • Past and future medical expenses
  • Past and future income loss
  • Emotional trauma
  • Loss of earning capacity
  • Permanent disability
  • Permanent disfigurement
  • Diminished quality of life
  • Pain and suffering
  • Spousal claim for loss of consortium
  • Punitive or exemplary damages

A claimant or plaintiff in a personal injury case is entitled to damages, which is an element of negligence so long as they are proved by a preponderance of the evidence. Damages must be  reasonable and be causally related to the accident. You can prove causal relationship by introducing medical testimony by way of records, medical report or testimony from the plaintiff’s health care provider that the accident was the causal factor. 

If you had a pre-existing condition, you have to at least prove that the accident aggravated the condition. You are entitled to any damages for making the injury worse than it was before the accident4. A medical expert can testify to what degree your condition was made worse. If you were caused to incur medical expenses or wage losses by the aggravation, then you can recover those damages. Your damages for pain and suffering, however, may be apportioned between what you were experiencing before the accident and the degree of suffering you are currently experiencing. 

Punitive Damages

When plaintiffs allege recklessness in a personal injury matter, they are typically doing so in order to assert a claim for punitive or exemplary damages. Punitive damages are typically not covered in auto liability policies or in homeowner’s policies so any award has to come from the individual defendant’s personal assets. 

Punitive damages are what they appear to be–compensation from the defendant that punishes him/her for the egregious conduct that harmed the plaintiff and to discourage the defendant from similar conduct in the future. They are a separate category of damages and are not compensatory or actual damages that compensate the plaintiff for medical expenses, property damage, or income losses, or for general damages such as pain and suffering. 

Punitive damages are available in California personal injury cases5. To be awarded punitive damages in California, the standard of proof is heavier than that of the civil standard that governs civil suits, which is proof by a preponderance of the evidence. The trier-of-fact needs will award punitive damages if the plaintiff proves by the standard of clear and convincing evidence that defendant acted with malice, oppression, or fraud6. This standard supposes a high probability that the matter is true. 


Gross negligence is often used to describe conduct that would warrant punitive damages but this is incorrect since it must be conduct that is malevolent, oppressive or fraudulent. Malice requires even more than a showing of gross negligence or even recklessness7. It is a willful disregard for the safety or rights of others. 


Oppression is slightly different than malice. It is despicable conduct that subjected the plaintiff to cruel and unjust hardship in knowing disregard of the plaintiff’s rights. Despicable conduct are actions so vile, base or contemptible that it would be looked down on and despised by reasonable people8.


A defendant commits fraud when he or she makes an intentional misrepresentation, deliberately deceives or conceals a material fact that is known to the defendant and is made with the intent to cause injury. An example is of a car dealer selling a vehicle to someone and not advising them that the steering or braking system is in desperate need of repair and that it is wholly unsafe to drive. 

Punitive damages are only awarded if actual damages are first awarded, indicating that the plaintiff suffered some type of harm. As stated herein. punitive damages are not compensation for any economic or non-economic losses sustained by the plaintiff. 

When making a punitive damages award, a jury will assess the wealth of the defendant and render an award that has a reasonable relation to the injury. The defendant’s wealth is relevant since the award is meant to punish the defendant and to discourage similar conduct in the future. Factors a jury will examine include:

  1. How reprehensible was the defendant’s conduct?
  2. What is the reasonable relationship between the plaintiff’s injury and the amount of punitive damages?
  3. What is an amount that will sufficiently punish the defendant and dissuade him from similar future conduct?

A punitive damages award may not be excessive. In determining whether an award is unreasonable, courts will look at the reprehensibility of the defendant’s conduct, whether the conduct evinced a willful disregard for the health or safety of others, if the conduct constituted a pattern of such behavior, and if the harm was the result of malice or deceit9. 

The Supreme Court also commented that although it will not impose a rigid limit on the ratio between harm or potential harm and the punitive damages award, “few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process10.

Assumption of Risk

A person who engages in certain risky behavior and is injured may not always be able to claim that another party or entity was the substantial cause of his injuries. This is a defense doctrine that a defendant can use and is usually applied to sporting activities that have inherent risks of injury that the player willingly assumes.

To use the defense of assumption of the risk, the defendant must show:


The plaintiff or injured claimant had knowledge of the risks involved in the particular activity


The plaintiff voluntarily assumed the risk either expressly or impliedly

The risk that is created and which harms the plaintiff cannot be one that the plaintiff did not assume. If the defendant engaged in deplorable or despicable behavior such as purposely trying to inflict serious injury on him or her, then the plaintiff did not accept that type of risk. 

Express Assumption

You may expressly accept or assume the risk of injury or harm in a certain activity when you sign a document to that effect. For instance, before you go paragliding or skydiving you will usually be asked to sign a waiver of liability or that you are expressly assuming all the risks associated with that activity. 

If you did sign a waiver or other agreement purporting to relieve the defendant of liability, there are certain factors a court will examine to determine if the waiver was valid:


Was the contract in violation of public policy? This would include a consideration of public safety or necessity.


Does the contract cover intentional acts? If so, then it is likely invalid since you will not generally assume that a person will intentionally try to harm you,


Did the plaintiff have the capacity to understand and appreciate the risk and to understand the nature and contents of the agreement? A minor cannot enter into a valid contract. A person under the influence may lack the required capacity. 

Implied Assumption

You can assume the risk by actually taking part in the activity, which is implied assumption. This can shown by verbal representations that you made or were told to you. If someone tells you that the car you are about to drive has faulty brakes and you nod and drive it anyway, then your actions can be construed as giving implied acceptance of the risk.

Primary And Secondary Assumption Of Risk

You primarily assume the risk of harm when you voluntarily engage in inherently risky conduct. There is no duty of care so assumption of the risk bars any recovery if you are injured11.

You do not assume that the defendant will engage in criminal behavior or in conduct that is so far outside the range of ordinary activity involved in that sport or activity. For instance, you are not barred from recovery if the defendant intentionally injures you or engages in reckless conduct that is outside the norm of range of ordinary activity for that sport12.

However, if you had no choice or that all other options would likely result in your being seriously harmed or killed, then you involuntarily assumed the risk and may not be considered as having waived the risk of harm. 

You may assume the risk in these situations:

  • Risk of being struck by a foul ball at a baseball game
  • You engage in skydiving
  • You enter a premises that has a prominent sign stating “Guard Dog on Premises” or “Enter at Your Own Risk,” or “Do Not Enter-Downed Power Lines.”
  • Playing with fireworks
  • Playing tackle football
  • Getting into a vehicle with an obviously intoxicated driver
Secondary Assumption

Secondary assumption of the risk does not relieve a defendant of liability. For instance, a defendant had a duty of care to you to provide a safe product to you but warns you that the product has a flaw in it that could injure you. You accept the risk and use the product in any event and sustain an injury. Because the defendant supplied you with an unsafe product, it can be found negligent or even reckless in selling it to you, knowing that it can harm you. You are also comparatively negligent in using the product with knowledge that it was defective and could harm you. The trier-of-fact can apportion the degree of causal responsibility between you and the defendant. 

Next Steps If You Need Help

If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Request A Free Consultation 818-351-9555 


  1. Delaney v. Baker (1999) 20 Cal. 4th 23, 31-32 []
  2. Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 521 []
  3. Taylor v. Superior Court (1979) 24 Cal.3d 890 []
  4. Hastie v. Handeland (1969) 274 Cal.App. 2d 599, 604 []
  5. California Civil Code § 3294 []
  6. Civil Code § 3294(c). []
  7. Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044 []
  8. CACI 3945 []
  9. State Farm Mutual Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 419 []
  10. State Farm Mutual Automobile Ins. Co, supra, 538 U.S. at pp. 424-425 []
  11. Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 []
  12. Knight v. Jewett (1992) 3 Cal.4th 296, 320 []

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