What Is the Difference Between Negligence and Recklessness ?
''Recklessness'' Is Not the Same as ''Negligence''
In Delaney v. Baker (1999) 20 Cal.4th 23, the court explained:
" 'Recklessness' refers to a subjective state of culpability greater than simple negligence, which has been described as a 'deliberate disregard' of the 'high degree of probability' that an injury will occur . Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.' (Rest.2d Torts, 500, com. (g), p. 590.)" (Delaney, supra, 20 Cal.4th at pp. 31-32.)
Section 500 of the Restatement Second of Torts, cited in Delaney, reads as follows:
"The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." (Rest.2d Torts, 500.)
Comment g to section 500 of the Restatement Second of Torts is entitled, significantly: "Negligence and recklessness contrasted." It reads, in full: "Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind." (Rest.2d Torts, 500, com. g, p. 590.)
Further, even before Delaney, the Court applied the principle articulated there to a case involving primary assumption of risk.
In Stimson v. Carlson (1992) 11 Cal.App.4th 1201, that court affirmed a summary judgment granted to a defendant boat owner in a personal injury action brought by a member of his sailing crew who was injured when hit by the mainsheet of the defendant's boat while sailing on San Francisco Bay. But the plaintiff in that case had alleged only negligence, which that court held was insufficient. Justice Reardon wrote for a unanimous court:
"Failing to call out course changes does not amount to intentional or reckless conduct. Stimson alleged that Carlson was negligent, not that he committed an intentional tort. Carlson's failure to declare a course change before executing it was not so reckless as to be totally outside the range of ordinary activity involved in the sport. Citing Knight. While his conduct was unexpected, it did not alter the fundamental risk of sailing--the boom and its sheets remained the danger. Therefore, Carlson's conduct did not breach any legal duty to Stimson, the case falls within the primary assumption of the risk doctrine barring Stimson's action, and the trial court properly granted Carlson's motion for summary judgment." (Id. at p. 1206.)
Since Delaney, a panel of the Third District has specifically applied that case's definition of "recklessness" to another primary assumption of risk case.
In Towns v. Davidson (2007) 147 Cal.App.4th 461, 470-473, that court held that a trial court was correct in granting summary judgment to a ski resort and one of its employees who had been sued by a skier who had collided with the employee on one of the resorts slopes. After quoting exactly the same passage as appears above from Delaney, the court held:
"To establish Davidson's conduct was reckless and not shielded by primary assumption of risk, plaintiff must show the conduct was 'so reckless as to be totally outside the range of the ordinary activity involved in the sport.' Citing Knight. ' "Conduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport." ' " (Towns, supra, at p. 470.)
Neither Stimson nor Towns is cited or discussed by the majority, an omission perhaps 50 percent attributable to the fact that Towns, contrary to the majority's statement in its footnote 6, relied on Delaney's definition of "recklessness" in affirming the summary judgment in the primary assumption of risk case before it. (Towns, supra, 147 Cal.App.4th at p. 470.)