Copyright 1965, American Law Institute

Division Two - Negligence
Chapter 12 - General Principles
Topic 2 - The Standard By Which Negligence is Determined


 In the Restatement of this Subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It does not include conduct recklessly disregardful of an interest of others.

 Special Note:  The word "negligent" is often used to include all conduct which, although not intended to invade any legally protected interest, has the element of social fault. Conduct which is in reckless disregard of a legally protected interest of others is thus constantly spoken of as a form of negligence, the phrases used being "reckless," "wanton," and "wilful negligence," as distinguished from "negligence" or "mere negligence." But as stated in §§ 500-503, conduct recklessly disregardful of an interest of another differs from negligence in several important respects:

1. The rule that contributory negligence is no defense to an act intended to invade the plaintiff's interest is applied where the conduct is in reckless disregard of the plaintiff's interest.

2. Greater culpability is recognized by the imposition of punitive damages in many jurisdictions.

3. There is a pronounced tendency to regard reckless conduct as the legal cause of a particular harm, although the actor's conduct if merely negligent would not have been so considered.

4. In some jurisdictions the liability of a landowner to a trespasser or a gratuitous licensee is imposed only when the presence of the trespasser or licensee is known and the risk created by the actor's conduct is out of all proportion to its social utility.

5. In the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard.

6. In those jurisdictions where the distinction between trespass and trespass on the case is still of importance, reckless disregard is assimilated to intended harm to the extent that an action for trespass will lie.

Notwithstanding the difficulty of drawing the line between negligence and reckless conduct, these differences make it advisable to treat the two subjects separately.


a.  Negligent conduct may consist either of an act (see § 2), or an omission to act when there is a duty to do so (see § 284).

b.  As stated in § 281, negligent conduct subjects the actor to liability only if the conditions stated in Clauses (a), (b), (c), and (d) of that Section exist.

c.  The concept of unreasonable risk includes the existence of a risk and also its unreasonable character. The conditions which determine whether the actor should recognize the existence and extent of the risk involved in his conduct are stated in §§ 289 and 290. The conditions which determine whether the risk is unreasonable are stated in §§ 291-296.

The phrase "conduct involving unreasonable risk" is substantially synonymous with the phrases "unduly dangerous conduct" and "unreasonably dangerous conduct." However, the phrase used in this Section is preferable in that it makes it easier to define the nature and character of the risk.

d.  Negligence contrasted with intended harm.  The definition of negligence given in this Section includes only such conduct as creates liability for the reason that it involves a risk and not a certainty of invading the interest of another. It therefore excludes conduct which creates liability because of the actor's intention to invade a legally protected interest of the person injured or of a third person (see 8 A, Comment b, which defines "intent" as including knowledge that the conduct will invade the interest, as well as a purpose to invade it). The conditions which create liability for intentional invasions of interests of personality are stated in Chapter 2.

e.  Negligence contrasted with recklessness.  As defined in this Section, the word "negligence" excludes conduct which the actor does or should realize as involving a risk to others which is not merely in excess of its utility, but which is out of all proportion thereto and is therefore "recklessly disregardful of the interests of others." As the disproportion between risk and utility increases, there enters into the actor's conduct a degree of culpability which approaches and finally becomes indistinguishable from that which is shown by conduct intended to invade similar interests. Therefore, where this disproportion is great, there is a marked tendency to give the conduct a legal effect closely analogous to that given conduct which is intended to cause the resulting harm. The rules which create liability for harm caused by conduct which is recklessly disregardful of the interests of others are stated in §§ 500-503.

f.  Negligence contrasted with liability without fault.  The fact that negligence as here defined is conduct which falls below the standard of behavior established by law for the protection of others carries with it the idea of social fault. Therefore it does not include acts which, although done with every precaution which it is practicable to demand, involve an irreducible minimum of danger to others, but which are so far justified by their utility or by traditional usage that even the most perfect system of preventive law would not forbid them. These may for convenience be termed "acts which create a strict liability" and are considered in Volume 3 of the Restatement of this Subject.

g.  The word "risk" standing by itself denotes a chance of harm. In so far as risk is of importance in determining the existence of negligence, it is a chance of harm to others which the actor should recognize at the time of his action or inaction.

h.  In determining whether the actor should recognize the risks which are involved in his conduct, either of act or omission, only those circumstances which the actor perceives or should perceive at the time of his action or inaction are to be considered. Circumstances which occur after the conduct which is alleged to be negligent are as immaterial as are those circumstances which exist at the time of his action or inaction, but of which the actor neither knows nor should know, although known to third persons. Thus the rule here stated has reference to the reasonable probability that harm will ensue, but not to its extent, so long as the harm itself is unreasonable.