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The Legal Blog of Jeremy Peter Green

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About

Jeremy with somebody else's dog.

 

Jeremy Peter Green is a branding attorney and the founder of JPG Legal. He is the attorney of record for over 1,000 U.S. trademark registrations. In 2019, JPG Legal was ranked the #16 law firm in the United States by number of federal trademark applications filed. Green graduated from Northwestern University School of Law on a full scholarship.

 

Green has been profiled on USA Today, CNBC, CNN Money, NPR's Morning Edition, WIRED, MSNBC, the New York Daily News, HLN, CNN Politics, DCist, Vox.com, CNET, Mic.com, NBC News, Refinery29, the Globe and Mail, and several other news sources. He is best known for owning ClintonKaine.com and hosting his comics there during the 2016 election, before selling the domain.

 

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Green is based in DUMBO, Brooklyn in New York City. He formerly served as in-house General Counsel and Webmaster for Teamsters Local 922 in Washington, DC.

 

You may contact him at info@jpglegal.com.

Are Negligence and Recklessness the Same Thing?


Negligence v. Recklessness

I frequently see people use the terms “negligence” and “recklessness” interchangeably, including people with legal training. The difference between recklessness and negligence — particularly criminal or gross negligence — can be subtle. While both terms refer to the accidental causation of harm, they are indeed different things.
 

Negligence

A negligent person fails to exercise the care that a reasonably prudent person would exercise in similar circumstances. The person does not know that their action is likely to harm somebody in that situation, but the accident is still at least partially the negligent person’s fault because a reasonably careful person would not cause the same result, or would make the result significantly less likely. Negligence can make somebody liable for civil damages in a lawsuit, but most negligent acts don’t warrant jail time in the US.
 

Example: A driver who stops at a crosswalk with a stop sign, looks briefly around, and then accelerates their car and hits a jogging pedestrian who has just started crossing, is probably negligent without being criminally or grossly negligent. The driver thinks they aren’t endangering anybody when they accelerate, maybe even reasonably so, but a prudent person in the same situation would either check more carefully before accelerating, or would recognize that their reflexes are not good enough to be driving a car. The pedestrian or the pedestrian’s estate will probably be entitled to monetary compensation for this accident, but the negligent driver is unlikely to face jail time.
 

Criminal Negligence

A criminally negligent person shows such an unacceptable lack of foresight and causes such a bad result by committing the negligent act — usually another person’s death, or harm to a child the person is responsible for — that society deems the person’s action worthy of serious criminal punishment.
 
Example: A driver sees a red light 20 feet ahead at a fairly busy urban intersection, glances around and establishes to their own satisfaction that nobody is about to cross the street, and then hits a crossing pedestrian after failing to stop or slow down at the red light. While the driver might be considered reckless in harsher states or non-criminally negligent in more lenient states, I believe the most accurate term for this accident is criminal negligence. The driver genuinely believes they are not endangering anybody, but a driver exhibiting even a basic level of care would avoid that accident by either stopping at the red light, or at least doing a better job of establishing that no pedestrians are about to cross the street. The driver might go to jail if the pedestrian is killed or badly hurt. This accident might be considered gross negligence as well.
 

Recklessness

A reckless person knows that an act has an unacceptably high chance of harming or killing others, but disregards that danger and commits the act anyway.
 
Example: A driver notices a red light at a bustling downtown intersection out of the corner of their eye, but is too absorbed in a novel to bother stopping or even looking around for pedestrians. Instead, the driver pushes harder on the gas petal because they are kind of hungry and want to get home faster. This driver is not just negligent, but reckless. The driver knows that speeding through a red light at a busy intersection creates a large risk to the lives of others, but the endangerment of others’ lives carries little to no weight in the driver’s decision-making.
 

Gross Negligence

A grossly negligent person commits an act without technically being aware of the risk to others’ lives, but the lack of awareness is so unacceptable and inexcusable that it would be recklessness if an ordinary person committed the act. Gross negligence overlaps with criminal negligence, and many acts that involve one also involve the other, but they are separate concepts. A person can be criminally negligent without being grossly negligent, and a person can be grossly negligent without being criminally negligent.
 
Example: A driver stops at a crosswalk with a stop sign, looks around thoroughly, and sees no pedestrians except magician David Blaine, who is about to cross the street. The driver screams, covers his eyes, and accelerates his car because he genuinely believes that David Blaine is a malicious and invulnerable demon. He is probably grossly negligent rather than reckless; he does not disregard the risk to human life in this situation because he truly believes that David Blaine is both invulnerable and non-human, meaning that there is no significant risk to human life for the driver to regard or disregard. While the driver should have known he was creating a significant danger to others, he technically didn’t, even though almost any other person would have known and therefore been reckless if they had done the same thing.
 

Negligence Vs. Recklessness Can Be Purely About Mentality

Another example in contrast with the reckless driver described earlier: If a driver speeds through a red light at a busy intersection without looking because he reasonably believes that his apartment is being robbed and he wants to get there before the burglar escapes with all of his material possessions, that driver is probably not reckless. Rather than disregarding the significant risk to human lives, this driver probably regards that risk substantially and decides that the risk to pedestrians is outweighed by the increased chance of saving all of his possessions. A prudent person would regard the risk to human lives and err in favor of safety, while a reckless person would disregard the risk to human lives as trivial. This driver was neither prudent nor reckless; he was negligent.
 
This post arguably constitutes legal advice and in a way I am your lawyer now. If my answer turns out to be wrong and something horrible happens as a result, remember that I cannot go to jail for it because it would at worst be negligence, like I said in the answer. At the end of this sentence, I will not be your lawyer anymore, unless I already was before.


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