Negligence Vs. Recklessness in a Personal Injury Case
A patron of a crowded restaurant gets up to use the restroom and trips over an exposed cord running across the ground, and breaks their wrist in the process. A driver pulls out into the road from their driveway and immediately gets hit in the front end by a drunk driver who has crossed into the wrong lane. A child visiting her friend’s house is viciously attacked by the family pit bull, resulting in death. An employee is burned by toxic chemicals because of the dangerous way their employer stored the chemicals was illegal. It is obvious that in all of these scenarios, one part is at fault for causing the other’s victims. But who is at fault? And, why type of fault is it—recklessness or carelessness/negligence? These latter terms are used in specific manners when it comes to civil liability. It is common for victims to get confused about legal terminology, especially when “recklessness” implies a serious wrongdoing, and “carelessness” is used to explain an innocent mistake in normal language. The same is not true when it comes to personal injury and wrongful death lawsuits.
Damages in a Personal Injury Claim
- Medical expenses;
- Future medical costs;
- Lost wages and earning ability;
- Property damage;
- Pain and suffering;
- Loss of joy of life;
- Emotional distress;
- Loss of consortium—only in wrongful death
- Funeral and burial expenses—only in wrongful death; and
In order to prove liability or “fault,” the injured plaintiff in a personal injury claim needs to show that the other party was either careless or reckless. For the purpose of a civil personal injury lawsuit, carelessness means the same thing as negligence. To be sure, negligence is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” Negligence can be an action or a failure to act. In the previous example about the restaurant patron who broke their wrist in a trip and fall, the business owner’s failure to act (tape down the loose cord) caused the trip, resulting in the injury and the plaintiff’s damages.
Sometimes the injured plaintiff is partially, or mostly, to blame for their injuries. If the restaurant patron was heavily intoxicated, the restaurant owner could argue that they would not have tripped on the exposed cord if they were sober. Of course, the plaintiff could also argue that they were over-served alcohol by their waiter, pinning more negligence back on the restaurant owner, but that is beside the point. Comparative negligence or comparative fault is used to determine liability when both parties share some blame. In this case, the plaintiff’s damages are reduced by the percentage of their own negligence. In this example, let us assume that the plaintiff was drunk before they came to the restaurant so that they cannot use the excuse of being over served alcohol. It could be argued that because of their intoxication, the plaintiff is 40 percent negligent, while the restaurant owner is 60 percent negligent. This would result in the plaintiff only being able to receive 40 percent of their total damages.
Similarly, the property owner was negligent for their dog’s attack on their child’s friend. However, the adult property owner is not negligent simply because they failed to act by locking the dog up or taught the dog to become an attack dog, for example. When it comes to certain types of personal injury claims, such as dog attacks and product liability, the legal doctrine of “strict liability” makes the at-fault party negligent regardless of certain other elements. For example, a dog owner is always liable for their dog attacking a victim who is not entering their property illegally. Comparative negligence may come into play if the victim taunted or teased the dog, however. Strict liability occurs when an individual is “liable for committing an action, regardless of what his/her intent or mental state was when committing the action.”
Recklessness is an extreme disregard for the safety of another. It is much more than just being careless/negligent. In the previous examples, the drunk driver was reckless, as was the employer who illegally stored deadly chemicals. If a defendant is found reckless, the plaintiff’s own alleged negligence is not likely to affect the outcome of liability. An at fault party who is reckless may also be charged criminally, and may also have to pay the victim punitive damages.
A Naples Personal Injury Attorney Can Help
If you were involved in any type of personal injury, you need an experienced Naples personal injury attorney. Call The Law Offices of Marc L. Shapiro, P.A. today at 239-649-8050 to schedule a free consultation.