Damages for “Recklessness” in California Personal Injury Cases

In California, "recklessness" is culpability of a higher degree than negligence or gross negligence, but less than an intentional wrong.

Someone acts recklessly when:

  1. That person knows that it is highly probable that his or her conduct will cause harm, and 
  2. The person knowingly disregards this risk.1

To help you better understand damages for “recklessness” in California personal injury cases, our California personal injury lawyers discuss, below:

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1. The legal definition of “reckless” under California personal injury law

California law defines recklessness as a subjective state of culpability that is greater than negligence. Simply failing to take precautions is not recklessness.

Rather, recklessness involves the deliberate disregard of a high probability that an injury to another will occur.2

Example: A trail guide at a horse riding stable in Los Angeles lets a novice rider gallop over rough terrain. The rider falls off and sustains a head injury.
Even though the guide did not intend for anyone to get injured, this may be more than negligence. The guide consciously disregarded a high probability that a novice rider would be injured if he let her gallop.

2. Damages for recklessness

Damages in personal injury cases fall into two general categories:

2.1. Can a plaintiff get punitive damages for recklessness?

California allows recovery of punitive damages when a plaintiff proves by clear and convincing evidence that the defendant has been guilty of “malice.”3

California law defines “malice” to include “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”4

So when a defendant has acted recklessly, a California jury is often able to award punitive damages.

3. What if plaintiff assumed the risk of injury?

"Assumption of the risk" is a legal doctrine that shifts liability for an injury to someone who voluntarily engages in a sport or other inherently risky activity.

But the doctrine only applies to the risks that one would expect to occur during such activity.

Example: Phil is the wide receiver on his high school football team. He assumes the risk of getting injured when an opposing player tackles him – even if the tackle was made negligently.
But a coach on an opposing team looks the other way when his players make tackles using unlawful helmet-on-helmet contact. During a game a safety on the other team head butts Phil during a tackle. Phil sustains a brain injury.
This was not one of the risks that Phil assumed. He may be able to recover punitive damages against the coach and possibly the school or school district that employed him.

4. Can I pursue criminal charges against a reckless defendant?

Maybe. It depends on whether the behavior violated a California criminal law which requires at least negligence as a factor.

But remember… in a criminal case, the unlawful behavior will need to be proved beyond a reasonable doubt.

In a civil case the recklessness and other factors must only be proved by a preponderance of the evidence (or for punitive damages, by clear and convincing evidence).

Common reckless acts that may create both civil and criminal liability include (but are not limited to):

Injured by someone's recklessness? Call us for help…

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If you or someone you know has been injured by someone's reckless behavior we invite you to contact us for a free consultation.

We work with a team of lawyers, paralegals, investigators and experts who understand how to look for evidence of more than simple negligence. 

And if you've been wrongly accused of a crime based on reckless behavior, our California criminal defense lawyers can make sure you don't take a fall for something you didn't do.

Call us at (855) 396-0370 to speak to an experienced lawyer today.

And if you were injured or charged in Nevada, call our Las Vegas personal injury lawyers or Nevada criminal defense lawyers for immediate help.


Legal references:

  1. California Civil Jury Instructions (CACI) 3113. "Recklessness" Explained.
  2. Delaney v. Baker (1999) 20 Cal.4th 23; Towns v. Davidson (2007) 147 Cal.App.4th 461; Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514.
  3. California Civil Code § 3294.
  4. California Civil Code § 3294(c)(1).

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