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Recklessness Vs Negligence

Civil lawsuits typically involve demonstrating that one party is liable for damages to another. The law calls these civil claims torts. Statutes and case law define tort claims, and these definitions typically include a level of culpability. The two most common levels of culpability are negligence and recklessness. 

So when is someone’s conduct recklessness vs. negligence? These terms may sound similar in everyday conversations, but they have very different meanings under the law. Read on to learn about these meanings and see examples of negligence and recklessness.

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Negligence Defined

In Texas, negligence is a legal concept that refers to the failure to exercise reasonable care under certain circumstances. It involves a person’s failure to act as a reasonably prudent person would in a similar situation. This carelessness results in harm or injury to another individual or their property. 

Negligence often forms the basis for personal injury and accident-related lawsuits. One famous example would be the hundreds of negligence lawsuits filed against Travis Scott. These lawsuits were due to the deaths and injuries that occurred at his Houston concert.

To establish negligence in Texas, a plaintiff must prove five key elements:

  • Duty of care—the defendant owed a legal duty to the plaintiff;
  • Breach of duty—the defendant breached this duty by failing to act reasonably;
  • Causation in fact—the defendant’s breach of duty was a direct cause of the plaintiff’s harm.
  • Proximate cause—the harm suffered was a foreseeable consequence of the defendant’s actions; and
  • Damages—the plaintiff suffered actual damages or harm due to the defendant’s negligence.

Understanding negligence is vital when dealing with personal injury cases or accidents in Texas. It forms the foundation for determining liability and seeking compensation for damages.

Recklessness Defined

Recklessness is a degree higher than negligence. It is knowingly engaging in actions that pose a substantial risk of harm to others. Individuals are aware of the significant risk their actions pose but choose to act regardless. This choice departs from what a reasonable person would do. 

Key Differences Between Negligence and Recklessness

Negligence and recklessness differ in their legal implications. Negligence refers to the failure to exercise reasonable care, meaning not taking precautions that a reasonable person would under similar circumstances. On the other hand, recklessness involves knowingly disregarding or ignoring potential dangers or the safety of others. Understanding these distinctions is crucial in legal contexts, as they determine the level of liability and potential consequences.

Intent and Awareness

Showing intent differs when it comes to recklessness vs. negligence. 

Negligence lacks intent. For example, a store owner might clean his floors but fail to dry them. A customer slips on the wet floor and gets hurt. The store owner didn’t intend to hurt anyone; he was just careless. Nevertheless, he should have been aware that a customer could slip on the wet floor and owed a duty to keep customers safe when in his store.

Unlike negligence, recklessness involves an intentional and conscious disregard for the safety and well-being of others. It represents a higher degree of culpability. It entails not just a failure to exercise reasonable care but a willful indifference to the potential harm caused by one’s actions. 

Here are specific examples of reckless behavior:

  • Drinking and driving, which involves operating a vehicle while under the influence of alcohol, in clear violation of traffic laws.
  • Engaging in drag racing or speeding through residential areas, posing significant risks to pedestrians and other drivers.
  • Using illicit substances in public spaces like nightclubs, endangering both oneself and others present.

Burden of Proof

In Texas negligence cases, the burden of proof rests on the plaintiff. They must establish the elements of negligence by a preponderance of the evidence. This means that the plaintiff needs to provide evidence demonstrating that it is more likely than not the defendant was negligent. 

If the plaintiff fails to meet this burden, the defendant may not be held liable for negligence.

Evidence of negligence often focuses on the defendant’s failure to meet a reasonable standard of care. For example, let’s return to the store owner with the wet floor. The plaintiff’s attorney can show pictures of the wet floor or gather eyewitness testimony of the fall.

To prove recklessness, the plaintiff must present evidence demonstrating that the defendant was aware that their behavior posed a substantial risk but ignored it. For example, imagine instead that the store owner spilled water on the floor on purpose to prank a coworker. He thought it would be funny for his coworker to step on the puddle and slip. But at the same time, a child was running around the store playing with his parents. The child didn’t see the puddle and fell after slipping on the water. The store owner didn’t intend for the child to fall, but he was aware of the risk when he created the puddle. For this reason, the owner’s acts could be reckless because he disregarded the risk he created. 

Possible Legal Defenses

Whether the jury has to decide if a defendant’s acts were reckless vs. negligent, the defendant can raise several legal defenses. 

Comparative Negligence

This defense acknowledges both parties’ contributions to the incident. It adjusts the plaintiff’s compensation based on their degree of fault. If the plaintiff was at least 51% at fault for the damages, the defendant can avoid liability entirely. 

Assumption of Risk

If the plaintiff knowingly and voluntarily assumed the risks associated with the situation, the defendant can argue that the plaintiff should bear responsibility. For example, a plaintiff might fall and break a bone at a skate park. The defendant can argue that the plaintiff knew skateboarding was dangerous and assumed all risk by choosing to skate.

Act of God

If the incident resulted from an unforeseeable natural event, the defendant might claim that they had no control over the situation. However, the act must be the sole cause of the accident.


In some cases, the plaintiff’s consent to a potentially dangerous activity can serve as a defense. Consent doesn’t have to be formal. Sports players consent to various acts that would be torts in normal life. 

How an Attorney Can Help

If you were hurt due to someone else’s lack of care, it’s in your best interest to work with an attorney. They will be able to guide you through the legal process and assess if your damages are due to recklessness vs. negligence. Your attorney will also take care of several key tasks to ultimately demonstrate that someone else caused your injuries. 

Some of these tasks include:

  • Drafting legal documents;
  • Negotiating with insurance companies;
  • Finding and interviewing witnesses; and
  • Calculating your total damages. 

The attorneys at Tawney, Acosta & Chaparro P.C. have litigated hundreds of cases that involve negligence and recklessness. Several of our attorneys earned the Texas Super Lawyers recognition due to their tenacity and hard work. We will never stop fighting to get you the compensation you deserve. Call us today or fill out our online form to schedule a consultation.

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James Tawney

James Tawney is a native of the Southwest dedicated to serving his community. He was born and raised in Arizona, where he attended Northern Arizona University and graduated summa cum laude.

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