Negligence and recklessness are two related, but distinct, concepts that can be applied in a civil or criminal case. If you are representing yourself in a negligence lawsuit, it is important to keep the two separate because each requires the plaintiff to prove and the defendant to discredit different elements. Proving negligence requires demonstrating that the defendant deviated from exercising a standard and acceptable level of care. Proving recklessness is more difficult because the plaintiff must show that the defendant had a specific state of mind. Negligence is often the result of a mistake, while recklesness often involves intentional behavior.
Negligence is a cause of action, or claim, that is alleged when a person has breached a duty of care imposed on him by the law and that breach causes a physical, emotional or financial injury to another person. To prove negligence, a plaintiff must prove four elements: (1) that the defendant had a legal duty to conform to a specific standard of care; (2) that the defendant breached his duty of care; (3) that defendant's breach was the direct and proximate cause of the plaintiff's injury; and (4) that the plaintiff suffered damages. In a civil action, the plaintiff must prove each and every element of negligence by a preponderance of the evidence. If a plaintiff is unable to establish any one element, the entire claim will be unsuccessful.
A person can also be charged with criminal negligence under a state's penal code. Criminal negligence occurs when a person, knowingly, undertakes risky behavior that causes him to breach a duty to exercise a reasonable amount of care. An example of criminal negligence is drinking and driving. A person who is intoxicated is aware that driving in such a state is dangerous but proceeds to engage in risky behavior despite the potential harm it may cause to others. A prosecutor must prove criminal negligence beyond a reasonable doubt, and a conviction can result in imprisonment, a fine, or both, but does not require the defendant to pay any damages directly to an injured plaintiff.
Similar to criminal negligence, recklessness is the state of mind that must be proven in a civil action in order to be awarded punitive damages. Punitive damages are added to the actual damages the defendant must pay to the injured plaintiff to compensate him and are designed to punish the defendant and deter him from undertaking risky behavior in the future. A plaintiff alleging that a defendant was reckless must prove that the defendant understood and appreciate the risk he was undertaking and intentionally engaged in the behavior despite the inherent risk.
An easy way to delineate the difference between negligence and recklessness is to remember that negligence is a claim in and of itself, while reckless is a mental state that can be used in a negligence action in order to get punitive damages.