Copyright 1965, American Law Institute
§ 500 RECKLESS DISREGARD OF SAFETY DEFINED
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.
Special Note: The conduct described in this Section is often
called "wanton or wilful misconduct" both in statutes and judicial opinions.
On the other hand, this phrase is sometimes used by courts to refer to
conduct intended to cause harm to another.
COMMENTS & ILLUSTRATIONS: Comment:
a. Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know, as that term is defined in § 12, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk. For either, the risk must itself be an unreasonable one under the circumstances. There may be exceptional circumstances which make it reasonable to adopt a course of conduct which involves a high degree of risk of serious harm to others. While under ordinary circumstances it would be reckless to drive through heavy traffic at a high rate of speed, it may not even be negligent to do so if the driver is escaping from a bandit or carrying a desperately wounded man to the hospital for immediately necessary treatment, or if his car has been commandeered by the police for the pursuit of a fleeing felon. So too, there may be occasions in which action which would ordinarily involve so high a degree of danger as to be reckless may be better than no action at all, and therefore both reasonable and permissible. Thus one who finds another in a lonely place, and very seriously hurt, may well be justified in giving him such imperfect surgical aid as a layman can be expected to give, although it would be utterly reckless for him to meddle in the matter if professional assistance were available.
For either type of conduct, to be reckless it must be unreasonable; but to be reckless, it must be something more than negligent. It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.
b. Perception of risk. Conduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended, notwithstanding that the actor knows of facts which would lead any reasonable man to realize the extreme risk to which it subjects the safety of others. It is reckless for a driver of an automobile intentionally to cross a through highway in defiance of a stop sign if a stream of vehicles is seen to be closely approaching in both directions, but if his failure to stop is due to the fact that he has permitted his attention to be diverted so that he does not know that he is approaching the crossing, he may be merely negligent and not reckless. So too, if his failure to stop is due to the fact that his brakes fail to act, he may be negligent if the bad condition of the brakes could have been discovered by such an inspection as it is his duty to make, but his conduct is not reckless.
c. Appreciation of extent and gravity of risk. In order that the actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous. His inability to realize the danger may be due to his own reckless temperament, or to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.
d. Knowledge of presence of others within danger zone. If the actor's conduct is such as to involve a high degree of risk that serious harm will result from it to anyone who is within range of its effect, the fact that he knows or has reason to know that others are within such range is conclusive of the recklessness of his conduct toward them. It is not, however, necessary that the actor know that there is anyone within the area made dangerous by his conduct. It is enough that he knows that there is strong probability that others may rightfully come within such zone.
e. Violation of statute. The mere fact that certain precautions are required by a statute rather than the common law does not of itself make the intentional omission of the statutory precaution reckless indifference to the safety of others. In order that the breach of the statute constitute reckless disregard for the safety of those for whose protection it is enacted, the statute must not only be intentionally violated, but the precautions required must be such that their omission will be recognized as involving a high degree of probability that serious harm will result. Thus, the violation of an antiquated speed limit, set by statute at a rate which is today customarily regarded as not particularly dangerous or unsafe, may constitute negligence but cannot amount to reckless misconduct.
f. Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.
g. Negligence and recklessness contrasted. 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.
REPORTERS NOTES: This Section has been changed from the first Restatement by rewording it in the interest of clarity. No change in substance is intended.
See, defining "reckless," or "wilful" or "wanton" conduct as here stated: Birmingham R. & E. Co. v. Bowers, 110 Ala. 328, 20 So. 345 (1895); Womack v. Preach, 63 Ariz. 390, 163 P.2d 280 (1945), affirmed on rehearing, 64 Ariz. 61, 165 P.2d 657; De Loss v. Lewis, 78 Cal. App. 2d 223, 177 P.2d 589 (1947); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950); Brock v. Waldron, 127 Conn. 79, 14 A.2d 713 (1940); Brannen v. Kokomo, G. & J. G. R. Co., 115 Ind. 115, 17 N.E. 202, 7 Am. St. Rep. 411 (1888); King v. Patrylow, 15 N.J. Super. 429, 83 A.2d 639 (1951); Tighe v. Diamond, 149 Ohio St. 520, 37 Ohio Op. 243, 80 N.E.2d 122 (1948); Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 5 Ohio Op. 214, 200 N.E. 843, 119 A.L.R. 646 (1936); Schu v. City of Pittsburgh, 341 Pa. 324, 19 A.2d 409 (1941); Adkisson v. City of Seattle, 42 Wash.2d 676, 258 P.2d 461 (1953); Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961); Powers v. Lackey, 109 Vt. 505, 1 A.2d 693 (1938); Alabama Freight Lines v. Phoenix Bakery, 64 Ariz. 101, 166 P.2d 816 (1946); Cramer v. Dye, 328 Mich. 370, 43 N.W.2d 892 (1950); Turner v. McCready, 190 Or. 28, 222 P.2d 1010 (1950).