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Torts II
University of Dayton School of Law
Hagel, Thomas

Law of Negligence and Recklessness: Generally
Duty + Breach + Causation + Damages
RTT simply states that “conduct is negligent if its disadvantages outweigh its advantages, while conduct is not negligent if its advantages outweigh its disadvantages.”
RST § 281. Statement of the Elements of a Cause of Action for Negligence
Actor is liable for an invasion of another’s interest if:
(a) interest invaded is protected against unintentional invasion, and
(b) conduct of actor is negligent with respect to other, or a class of persons within which he is included, and
(c) actor’s conduct is a legal cause of invasion, and
(d) other has not conducted himself to disable himself from bringing an action for such invasion.
Illustration
A, negligently shooting in street, wounds B’s dog.
Dog, yelping with pain, runs into B’s house and collides with B in hallway, knocking B down and injuring him.
A is subject to liability to B, not only for harm to his dog but also for harm to his person.
RST § 282. Negligence Defined
Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
Does not include conduct recklessly disregardful of an interest of others.
RST § 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.
Comment a. Types of reckless conduct
·         Actor must know, or have reason to know, the facts which create the risk.
·         Risk must itself be an unreasonable one under the circumstances.
·         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,
o       although it would be utterly reckless for him to meddle in the matter if professional assistance were available.
·         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.
Comment 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.
Comment 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.
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.
Comment e. Violation of statute
·         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,
o        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.
Comment f. Intentional misconduct and recklessness
·         To be reckless, an act must be intended by the actor.
·         But 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.
Comment g. Negligence and recklessness contrasted
·         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.
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.
RST § 502. Reckless Disregard of One’s Own Safety
Comment a.
·         Actor’s conduct is in reckless disregard of his own safety if he does an act or fails to act,
·         knowing or having reason to know of facts which would lead a reasonable man to realize, not only that such conduct creates an unreasonable risk of physical harm to himself,
but also that such risk is substantially greater than that which is necessary to make his conduct contributory negligence.
RST § 503. Plaintiff’s Conduct
Contributory negligence does not bar recovery for harm caused by the defendant’s reckless disregard.
Plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm.
Plaintiff who assumes the risk arising from the defendant’s reckless disregard of his safety is barred from recovery.
Comment b.
·         If the defendant’s conduct amounts to reckless disregard of the plaintiff’s safety

al, as to the standard of care to be applied to the decedent’s conduct, the trial court, over the driver’s objection, instructed the jury that, because the decedent was under the age of 21 at the time of the accident, he was considered a minor and was not to be held to the same degree of care as an adult;
instead, he was required to exercise the care of the average child of his age, experience, and stage of mental development.
After the jury returned a verdict in favor of the administrator, the driver appealed.
The court held the driver’s objection to the trial court’s instruction was valid because a minor operating a motor vehicle, whether an automobile or a motorcycle, was to be judged by the same standard of care as an adult.
It would be unfair to the public to allow a minor in operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others.
A person observing children at play can see that their conduct does not rise to adult levels, but when driving, one does not know whether the car approaching them contains an experienced or inexperienced driver.
Adult and child activities
Goss v. Allen
17-year-old beginning skier held to a standard of care appropriate to youths of the same age.
In distinguishing the case from other adult activities, the court noted that youths did not need a license to ski.
Dellwo v. Pearson
12-year-old D held to adult standard of care in operation of a speedboat, though there was no licensing statute for such boats.
Harrelson v. Whitehead
15-year-old P operating a motorcycle was held to adult standard of care on issue of contributory negligence.
Jackson v. McCuiston
13-year-old farm boy should be judged by adult standard of care in operating tractor-propelled stalk cutter.
Purtle v. Shelton
Refused to hold a 17-year-old boy to adult standard in use of dangerous firearms.
Held that a lower standard of care for minors was appropriate, because deer hunting was not exclusively an adult activity.
Connor v. Putney
It was not an adult activity for a 14-year-old child to entrust a golf cart to an 11-year-old P, and further, that driving a golf cart on private premises was not an adult activity.
The court reasoned that there was no evidence that the operation of golf carts on private premises and automobiles on premises open to the public requires similar driving skills beyond the most rudimentary level.
Third Restatement adheres to the general rule, holding a child to the standard of a “reasonably careful person of the same age, intelligence, and experience.”
Third Restatement also says that a child under five is incapable of negligence.