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For most personal injury lawsuits the common cause of action is negligent conduct by the at-fault party. There is a higher standard known as recklessness or wantonness that can be shown in cases with egregious conduct. While negligence is defined as a failure to act as a reasonable person would in a similar situation, recklessness, by contrast, is when a person knows or should know the risk of harm created by their conduct and manifests a complete lack of concern for the rights and safety of others. This is especially true when the cost of implementing safety measures to prevent the harm is minimal.
Why does proving Recklessness Matter?
When you prove that someone acted negligently you can collect compensatory damages for the injuries you suffered. Compensatory damages are to compensate you for the losses you sustained as a result of the other person's conduct. This is intended to put you back in the position you would have been in had the accident never occurred.
Proving recklessness allows you to collect both compensatory and punitive damages. Unlike compensatory damages punitive damages are not intended to make the injured person whole. Instead, punitive damages are there superficially to punish the wrong-doer and hopefully dissuade future reckless conduct from them and others like them. Punitive damages allow you to vastly increase your recovery from an accident.
As an example, if you think back to the famous McDonalds Hot Coffee case, the Plaintiff proved that she was injured and collected for compensatory damages. She also proved recklessness on the part of McDonalds with evidence that they knew that the coffee was dangerously hot and chose to serve it that way anyway because changing it would result in lower profits. (hotter brewing temps for cheap coffee can result in a better taste) The Jury awarded an additional sum of punitive damages unrelated to that plaintiff's specific injuries to punish McDonalds for that decision.
If you haven't watched the documentary done on that case, I highly recommend it.
How and when to prove recklessness?
The best cases to prove recklessness are cases where a corporate defendant is involved. The reality is that in many standard auto accident cases there is not sufficient insurance to cover an award of significant punitive damages. However, when a corporate defendant is involved there is a deep enough pocket to cover even a multimillion dollar award for punitive damages.
The other aspect is that many corporations put profits ahead of people's safety, and those are prime candidates for proving recklessness. If you suspect that the problem that resulted in your injuries was a known issue and could have easily been fixed then that is the type of case you want to claim recklessness as a cause of action. We used the hot coffee example earlier, but we see this a lot in trucking accidents as well. Pushing drivers to drive longer than DOT regulations, or failing to do inspections to get on the road a little faster.
Throughout the discovery process you should be seeking evidence that allows you to show knowledge of the issues that led to your injuries, and knowledge that those issues carried the risk of the type of injury that you suffered. Finally, seek out evidence of a solution that would have been low cost or easily implemented that would have prevented your specific harm.
The magic bullet cases are obviously those where the corporate defendant actually acknowledged the issue, risks, and made the decision to not implement a solution based on loss of profits.
