Tuesday, June 20, 2017

Reckless Driving

Reckless Driving[1]
Dale G. Larrimore
Larrimore & Farnish, LLP – Philadelphia, PA

§ 3736. Reckless driving.
Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

            The phrase “willful and wanton” as used in section 3736 of the Vehicle Code, applies when a driver grossly deviates from ordinary prudence and creates a substantial risk of injury.[2]  It conforms to the type of conduct that is generally known as reckless conduct in the law. Under the Restatement Second of the Law of Torts:
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 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.[3]

A motorist who exhibits a callous disregard for the danger created by his or her conduct would be guilty of reckless driving under this section.[4]
            Reckless conduct is the “intentional acting or failing to act in complete disregard of a risk of harm to others which is known or should be known to be highly probable and with a conscious indifference to the consequence .... In other words, it’s more than mere negligence. It’s acting in such a way that the person acting has a conscious indifference to the consequences.”[5] The Pennsylvania Supreme Court has indicated that a person is guilty of wanton misconduct if that person recklessly disregards an existing danger, realizing, or at least having knowledge of sufficient facts to cause a reasonable man to realize, the existence of the peril for a sufficient period of time to give an opportunity to take action to avoid the accident.[6]
Driving a vehicle at 70 miles-per-hour around a blind curve demonstrates willful or wanton disregard for the safety of persons or property, sufficient to support a conviction for reckless driving.[7] Entering the opposite lane of travel constitutes reckless driving.[8] Every licensed driver is aware that driving while under the influence of alcohol presents a significant and very real danger to others and, under the appropriate circumstances, evidence of driving under the influence is outrageous misconduct demonstrating a reckless disregard to the safety of others sufficient to warrant punitive damages.[9]
            Thus, whether it is termed ‘reckless disregard’ or ‘wanton misconduct,’ the basis of this liability in tort is premised upon the actor intentionally doing an act creating a great risk of harm when the actor either (1) knows of the great risk, but consciously disregards it and proceeds, or (2) had knowledge of facts that would lead a reasonable man to become aware of this risk in time for the actor reasonably to avoid the danger.[10] Our Superior Court has held that a motorist can drive in such a reckless manner that he must be deemed to have been aware of the fact that he was creating a substantial risk of causing a motor vehicle collision.[11]
            The violation of multiple provisions of the Vehicle Code can result in a conviction of reckless driving, even where one violation may not have been sufficient to demonstrate the requisite degree of wanton disregard for the safety of others. The Pennsylvania Superior Court has held that the “cumulative conduct” of a motorist who was speeding, tailgating and erratically changing lanes was sufficient to demonstrate that he acted in a reckless and grossly negligent manner.[12]
            While drunk driving is certainly reckless behavior, courts have held that driving under the influence of an intoxicating substance does not, in and of itself, establish reckless driving per se; there must be other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously disregarded.[13] An intoxicated driver’s flight from an approaching police officer could be considered reckless driving.[14] However, it is recognized that there is a level of intoxication that would render a person so incapable of safe driving that the probability of injury or death would rise high enough to satisfy the willful and wanton recklessness standard for a violation of Section 3736 of the Vehicle Code.[15]
            There are two significant effects of reckless conduct by a defendant. First, if the evidence reveals and the fact finder determines that the defendant acted with recklessness, then the defendant would be barred from utilizing the affirmative defense of comparative negligence[16] at trial.[17] When willful or wanton misconduct is involved, comparative negligence should not be applied, as reckless conduct and negligent conduct require different levels of culpability.[18] Recklessness is different “in kind” from mere negligence or carelessness; it cannot be compared with negligence for purposes of apportioning fault under the Comparative Negligence Act.[19] For this reason, an averment of recklessness in pleadings is proper on its own, with or without a claim for punitive damages.
            The second significant effect of reckless conduct is that it exposes the defendant to a claim of punitive damages. Assessment of punitive damages are proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.[20] In Feld v. Merriam, the Supreme Court adopted Section 908(2) of the Restatement (Second) of Torts, under which punitive damages may be awarded against a defendant who acts with reckless indifference to the rights of others.[21] Where a defendant knows, or has reason to know, of facts that create a high degree of risk of physical harm to another and deliberately proceeds to act or fails to act in conscious disregard of, or indifference to, that risk than punitive damages may be awarded.[22]
            The question of whether a person's actions rise to outrageous conduct done with reckless indifference to the interests of others lies within the sound discretion of the fact-finder and should not be disturbed by an appellate court so long as that discretion has not been abused.[23] 

[1] Excerpted from Larrimore, Dale, Pennsylvania Rules of the Road, Vol. 13 of West’s Pennsylvania Practice Series, 2016-2017 Edition, Section 6:2. Copyright Thomson Reuters.
[2] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005), cited with approval in Com. v. Carroll, 936 A.2d 1148 (Pa. Super. Ct. 2007).
[3] Restatement Second of Torts §500, as quoted in Sullivan v. Wolson, 396 A.2d 1230 (Pa. Super. Ct. 1978).
[4] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005).
[5] Junk v. East End Fire Dept., 396 A.2d 1269, 1274 (Pa. Super. Ct. 1978).
[6] Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965).
[7] Com. v. Fieldler, 931 A.2d 745 (Pa. Super. Ct. 2007).
[8] Com. v. Best, 120 A.3d 329 (Pa. Super. Ct. 2015).
[9] Focht v. Rabada, 268 A.2d 157, 161 (Pa. Super. Ct. 1970).
[10] Sullivan v. Wolson, 396 A.2d 1230, 1236 (Pa. Super. Ct. 1978).
[11] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), reargument denied January 10, 2008, citing Com. v. Greenberg, 885 A.2d 1025, 1028–29 (Pa. Super. Ct. 2005).
[12] Com. v. Matroni, 923 A.2d 444 (Pa. Super. Ct. 2007).
[13] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007)(citing Com. v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. Ct. 1998).
[14] Com. v. Finley, 135 A.3d 196 (Pa. Super. Ct. 2016).
[15] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), citing Com. v. Bullick, 830 A.2d 998, 1004 (Pa. Super. Ct. 2003).
[16] Pennsylvania’s Comparative Negligence Act is found at 42 Pa.C.S. §7102(a).
[17] Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943).
[18] Krivijanski v. Union R. Co., 515 A.2d 933, 936 (Pa. Super. Ct. 1986).
[19] Johnson v. City of Philadelphia, 808 A.2d 978 (Pa. Commw. Ct. 2002).
[20] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991).
[21] Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).
[22]SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 494–95, 587 A.2d 702, 704–705 (1991), citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963).
[23] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991).

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