In two torts cases it has heard recently, Burlingame v. Estate of Burlingame, and Estate of Anderson v. City of Massillon, the Supreme Court of Ohio is tackling the definition of recklessness in order to determine whether firefighters on emergency runs are entitled to immunity for fatal accidents they caused. Under R.C. 2744.03(A)(6)(b) employees of political subdivision (cities are political subdivisions) lose immunity if they act with malicious purpose, in bad faith, or in a wanton or reckless manner.
The problem is that the Court has been a bit loose with its definitions of recklessness in the past. In Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990), the Court held that in a sporting event between participants (later extended to spectators) liability was imposed only for intentional “or in some cases reckless conduct.” In that case, the Court adopted the definition of reckless from 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500:
“The actor’s conduct is in reckless disregard of the safety of others 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.” The Court went on to note that Comment f to Section 500 contrasts recklessness and intentional misconduct: “While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.” Comment a to Section 500 adds that ” * * * the risk must itself be an unreasonable one under the circumstances.”
Footnote one in the Thompson case has been the source of much of the subsequent confusion. In that footnote, the Court wrote, “the term “reckless” is often used interchangeably with “willful” and “wanton.” Our comments regarding recklessness apply to conduct characterized as willful and wanton as well.”
This footnote has a direct bearing on another issue in the two political subdivision liability cases. Under Chapter 2744, political subdivisions have respondeat superior liability for willful and wanton misconduct of firefighters during an emergency run, but not for reckless conduct. But if the terms are indeed interchangeable, that could determine this issue, especially pertinent in the Estate of Anderson case.
In Fabrey v. McDonald Village Department, 70 Ohio St.3d 351, 1992-Ohio-368 the Court tackled the issue of employee immunity in a constitutional challenge to R.C. 2744.02(B)(4), a subsection of the political subdivision immunity statute. Fabrey involved the question of whether a police chief was liable because he was alleged to have acted in a willful and wanton manner by knowingly failing to comply with minimum jail standards promulgated by the Department of Rehabilitation and Correction. While agreeing that the issue of wanton misconduct is usually a jury question, the Court upheld summary judgment for the Chief in this case. Opinion author Moyer cautioned that the standard for proving wanton misconduct was high, and involved failing to exercise any care whatever. The Court found that the police chief’s failure to maintain certain safety standards was negligent at best, and nowhere close to wanton misconduct. Citing Rozman v. Sammett, 26 Ohio St.2d 94, 363 N.E.2d 420 (1971) the Court held that “mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” And the Court approved its earlier articulation of the reckless standard as “the actor’s conduct is in reckless disregard of the safety of others if * * * such risk is substantially greater than that which is necessary to make his conduct negligent.”
Most recently, the Court tackled these definitions in O’Toole v. Denihan, 118 Ohio St.3d 374, 2008 Ohio 2574, again in the context of political subdivision immunity-in this case a county Department of Children and Family Services. The high court again found no recklessness as a matter of law by a social worker in a case in which on the social worker’s recommendation an allegedly abused child was left with her mother and later died from blunt force trauma at the hands of the mother and the mother’s boyfriend. The syllabus of O’Toole defines recklessness as a “perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.” I think this is where things have gone off course. “Perverse disregard” is language that seems too harsh for recklessness. That language is better suited to wantonness, as the Court suggested in Fabrey. As a torts professor, I think that recklessness, wantonness, and willfulness are a continuum, with recklessness the least offensive of the three (but clearly worse than simple negligence, to be sure) I think the Court needs to clean this up in the two cases before it on recklessness.
Being a Professor I consulted a couple of well-known torts Hornbooks on this subject. This is from Dean Prosser’s Hornbook: “Although efforts have been made to distinguish (reckless, willful, and wanton) them, in practice such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out of the same legal exit…The usual meaning assigned to “willful”, “wanton” or “reckless” according to taste as to the word used is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.”
From Professor Dan Dobbs of the University of Arizona comes this for all three terms—“First, the conduct must not only create an unreasonable risk of harm to others, it must create a high degree of risk or a risk of very serious harm. Second, the defendant must be conscious of the risk and proceed without concern for the safety of others.”
These hornbook views are actually consistent with the Ohio Supreme Court’s footnote in the Thompson case.
Here’s one Court that took a recent crack at some definitional differences. In 1995, in Sandler v. Commonwealth, 644 N.E.2d 641, the Supreme Judicial Court of Massachusetts wrote that willfulness can mean an intent to cause harm, and that wantonness may suggest an “arrogance, insolence, or heartlessness that reckless conduct lacks.” I like that one.
And here’s the definition of recklessness from the Restatement (Third) of Torts, Liability for Physical and Emotional Harm, §2:
A person acts with recklessness in engaging in conduct if
(a) The person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the person’s situation, and
(b) The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
Under the Reporter’s Note, comment a to this section, is an interesting little discussion of willful, wanton and reckless.
Still, I think the Supreme Court of Ohio is going to define these terms differently, especially because of the use of the word “or” between the terms in the statutes at issue.