CACI 3113 Recklessness Explained

California Civil Jury Instructions CACI

3113 “Recklessness” Explained

[[Name of individual defendant]/[Name of employer defendant]’s employee] acted with “recklessness” if [he/she/nonbinary pronoun] knew it was highly probable that [his/her/nonbinary pronoun] conduct would cause harm and [he/she/nonbinary pronoun] knowingly disregarded this risk.

“Recklessness” is more than just the failure to use reasonable care.

Directions for Use

If the individual responsible for the elder abuse is a defendant in the case, use “[name of individual defendant].” If only the individual’s employer is a defendant, use “[name of employer defendant]’s employee.”

Sources and Authority

“ ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’ ” (Delaney v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610, 971 P.2d 986], internal citations omitted.)

“[T]he term ‘recklessness’ requires that the defendant have knowledge of a high degree of probability that dangerous consequences will result from his or her conduct and acts with deliberate disregard of that probability or with a conscious disregard of the probable consequences. Recklessness requires conduct more culpable than mere negligence.” (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)

“The trier of fact should decide whether a knowing pattern and practice of understaffing in violation of applicable regulations amounts to recklessness.” (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349 [200 Cal.Rptr.3d 345].)

“A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.” (Fenimore, supra, 245 Cal.App.4th at p. 1350.)

Restatement Second of Torts, section 500, provides: “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.”

Secondary Sources

Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:33, 9:33.1 (The Rutter Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly, § 5.33[1] (Matthew Bender)