Shortcomings of the Recklessness Instruction by Nicole L. Cannon and Casey J. Hemmer

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by Nicole L. Cannon and Casey J. Hemmer

Recklessness is not recognized as a separate tort in Idaho but is merely a degree of negligence.[i] As a result, Idaho does not allow a party to argue for increased damages merely based on a finding of recklessness. However, a finding of recklessness can still have a significant impact on damages awarded in civil cases. Under Idaho’s non-economic damages cap, no party may obtain non-economic damages above the cap as specified in the Idaho statute.[ii] An exception to this rule exists where the fact finder determines that the tortfeasor acted willfully, recklessly, or feloniously.  In those instances, the non-economic damages cap does not apply.[iii] The question then becomes, when do these exceptions apply?

This article addresses the contexts in which the exceptions to the non-economic damages cap apply, focusing on the application of “recklessness.” To understand the difficulties of determining what constitutes recklessness, a review of relevant caselaw is presented in the following. An analysis of recent legislation regarding recklessness is also provided. Finally, the article addresses the significant difficulties with the legislative enactments regarding recklessness.

Willfully, Recklessly, and Feloniously

As mentioned, the three exceptions to the non-economic damages cap ask the fact finder to determine whether the tortfeasor acted willfully, recklessly, or feloniously. Regarding the latter, there does not appear to be any Idaho caselaw addressing how to apply this exception. However, the language of the statute is relatively straightforward, in that the non-economic damages cap will not apply to “[c]auses of action arising out of an act or acts which the trier of fact finds beyond a reasonable doubt would constitute a felony under state or federal law.”[iv] This language requires the plaintiff to effectively prove that the tortfeasor committed a felony, utilizing a “beyond a reasonable doubt” standard, and that the claim arises out of the felonious conduct.

Reckless Caselaw

There have been numerous published cases from the Idaho Supreme Court defining recklessness for purposes of jury instructions. Not all these instructions have been identical. For instance, in Carrillo v. Boise Tire Co.,[v] the following instruction was given: “The words ‘willful or reckless’ when used in these instructions and when applied to the allegations in this case, mean more than ordinary negligence. The words mean intentional or reckless actions, taken under circumstances where the actor knew or should have known that the actions not only created an unreasonable risk of harm to another, but involved a high degree of probability that such harm would actually result.”

A few years later, the Court approved the following instruction with a slight variation from the Carrillo instruction: “The words ‘willful or reckless misconduct’ when used in these instructions and when applied to the allegations in this case, mean more than ordinary negligence. The words mean intentional or reckless actions, taken under circumstances where the actor knew or should have known that the actions not only created an unreasonable risk of harm to another, but involved a high degree of probability that such harm would actually result.”[vi]

Another slight variation was approved in Ballard v. Kerr: “Willful or reckless misconduct, when used in these instructions and when applied to the allegations in this case, means more than ordinary negligence. Willful or reckless misconduct means intentional or reckless actions, taken under circumstances where the actor knew or should have known not only that his actions created an unreasonable risk of harm to another, but also that his actions involved a high degree of probability that such harm would actually result.”[vii]

Then, in Herrett v. St. Luke’s Magic Valley Reg’l Med. Ctr., the following instruction was approved: “Conduct is reckless when a person makes a conscious choice as to his or her course of action under circumstances where the person knew or should have known that such action created a high probability that harm would actually result. The term ‘reckless’ does not require an intent to cause harm. Reckless means more than ordinary negligence.”[viii]

Most recently, the Supreme Court approved of the use of Idaho Civil Jury Instruction (“IDJI”) 2.25 for the definition of “willful and wanton” without comment on the multiple versions of other instructions that have been used in the past.[ix]

While the general rule is that IDJIs are to be used where they are appropriate, that same rule states that courts may vary from the IDJIs when “it finds that a different instruction more adequately, accurately or clearly states the law.”[x] As shown, the Supreme Court is fairly permissive when it comes to alternate jury instructions, so long as the instruction given accurately sets forth the law.

"The recently codified definition leaves a number of important questions unanswered, providing juries with little guidance on how to decide this important question."

Statutory Recklessness

As a result of the multiplicity of potential recklessness instructions, the Idaho Legislature appears to have stepped in to attempt resolve this issue. In 2020, the Legislature enacted (and the governor signed) a bill that provided specific language as to what amounts to recklessness for purposes of addressing the non-economic damages cap.[xi]

The newly added language, codified as Idaho Code § 6-1601(10) reads: “‘Willful or reckless misconduct’ means conduct in which a person makes a conscious choice as to the person’s course of conduct under circumstances in which the person knows or should know that such conduct both creates an unreasonable risk of harm to another and involves a high probability that such harm will actually result.”

In enacting this language, the Legislature did not provide any guidance as to how or whether this language is to be used by a jury, though it had provided such guidance in the past.[xii] However, a reasonable presumption is that when the Idaho Legislature created a statutory definition of recklessness for purposes of the non-economic damages cap, this is likely to be the applicable language for instructing the jury when they are asked to determine whether conduct was reckless.

Problems with the Recklessness Definition

Unfortunately, despite the Legislature’s efforts, this revamping of I.C. § 6-1601(10) did little, if anything, to help allay confusion and provide a basis for a clearer jury instruction.  On the contrary, the recently codified definition leaves a number of important questions unanswered, providing juries with little guidance on how to decide this important question.

To begin with, the language from the 2020 legislative revision does not provide sufficient guidance for a jury to determine what conduct constitutes foreseeability, or the “high probability that such harm will actually result.”  For example, in the context of a medical malpractice case, in order “[t]o establish proximate cause, a plaintiff must demonstrate that the provider’s negligence was both the actual and legal (proximate) cause of his or her injury.”[xiii] Actual cause is a “factual question focusing on the antecedent factors producing a particular consequence.”[xiv] Legal cause exists when “it is reasonably foreseeable that such harm would flow from the negligent conduct.”[xv]  However, there is no duty to guard against risks which a defendant cannot reasonably foresee.  As such, if there is no foreseeability for an outcome, there can be no liability.[xvi]

Given this, what does foreseeability entail?  In other words, how “high” must the probability be that the harm may occur for a jury to determine the defendant’s actions constitute recklessness? Importantly, one must not forget the Legislature intentionally used the word “actually” in characterizing the foreseeability that the harm may occur.  In analyzing statutory language, courts must give effect to every word of the statute and every word of the statute needs to be given its plain meaning.  Critically for these purposes, the Legislature did not simply require a “high probability of harm” to find recklessness, but rather a “high probability that such harm will actually result.”  The second part of this clause, “will actually result,” functions to qualify the words “high probability” which immediately precede it.

Merriam Webster defines “actually” as: (1) “in act or in fact: really,” and (2) “in point of fact.”[xvii]  Other courts in various contexts have held the word “actually” has independent meaning within a statute and provides clarity or qualification to other, adjacent statutory terms.[xviii]

Thus, to give the proper and intended effect to the term “actually” in I.C. § 6-1601(10), “high probability” must be read to require harm that is “in fact” going to occur, harm which is “really” going to occur. Thus, the term “actually” intensifies and limits “high probability” to situations where the harm is all but inevitable, or all but certain to occur.  A reading of the statute which merely focuses on “high probability” and ignores the term “actually” impermissibly renders the word a nullity and dilutes the intended meaning of “high probability.”

It appears the Idaho Court of Appeals was mindful of this increased burden of proof.  In Galloway v. Walker,[xix] the trial court charged the jury using the definition of reckless found in the Restatement (Second) of Torts § 500 (1965), which stated:

A person’s conduct is reckless 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, under the circumstances.

The “high probability” language did not appear in the charge because the Idaho Supreme Court had only recently updated IDJI2d 2.25 to include this language.  According to the Court of Appeals, the updated charge which provided the conduct “involved a high degree of probability the harm would actually result” sets a higher standard of proof for plaintiff than the language of the Restatement.  Thus, Galloway recognized the high burden this element places on a plaintiff.

However, without further guidance from either the courts or the Legislature, this important question is open for interpretation.  If a jury is struggling with this determination, how high the probability must be before a course of action is considered to be reckless, with no assistance, different juries could reach wildly differing results on the same set of facts before them.

Additionally, hand in hand with the proceeding question, there is no guidance as to what the term “such harm” means in this context, and what plaintiffs must prove in order to meet this burden.  In the context of medical malpractice, does the term “such harm” mean that a patient may suffer some type of undefined poor outcome?  Or does it mean the specific harm which actually occurred?[xx]

Finally, it is certainly notable the Legislature chose to explicitly include the unreasonable risk language which had been omitted in Herrett, signifying the “unreasonable risk” was a separate and distinct element from “high probability that such harm will actually result.”  Any other reading of the statute would fail to give effect to “unreasonable risk” and render it superfluous.  This too, however, is open to interpretation, with little guidance.  “Unreasonable” to whom?  To the person facing the risk, or to the person engaging in the course of conduct?  What might constitute “unreasonable” to a highly trained professional, working within their field, may well look starkly different to a lay person without similar training.

Given the uncertainty surrounding the current definition of “willful or reckless misconduct” as provided by I.C. § 6-1601(10), the courts and attorneys (and juries) in Idaho are left in a position where the determination of whether any specific conduct was “reckless” is nearly impossible to decide with any sort of consistency.  Where the statutory definition could reasonably be interpreted multiple ways, it is challenging for anyone involved in the litigation process to reasonably evaluate their case.  Moreover, the lack of clarity provides a real risk of vastly disparate outcomes in similarly situated cases.  As such, it is imperative that more clear guidance be given regarding what truly does constitute “reckless misconduct” in Idaho.

We urge members of the Bar to discuss this important issue with relevant industry groups to ensure those most impacted by it fully understand the implications of this uncertainty.  Getting a resolution to these unanswered questions may require a concerted effort, either in the courts or the Legislature, or both, but given the importance of having an answer, we believe it is a worthwhile effort.

Nicole L. Cannon

Nicole L. Cannon graduated from the University of Utah College of Law in 1996. Nikki Cannon began her law practice as a deputy prosecuting attorney in Minidoka County for approximately 12 years. After, Nikki joined the firm of Tolman & Brizee, P.C. in Twin Falls, and shifted the focus of her practice to insurance defense. Nikki is now a proud partner in Tolman Brizee & Cannon, continuing her work in defending clients in various civil matters. When she’s not working, Nikki enjoys traveling, cooking, and spending time in Idaho’s great outdoors with her husband and their golden retriever.

Hemmer, Casey

Casey J. Hemmer

Casey J. Hemmer graduated from the William and Mary School of Law and has been practicing law since 2005. For 12 years he practiced criminal law, first as a deputy prosecuting attorney and then as a deputy attorney general for the State of Idaho. Mr. Hemmer joined Tolman Brizee & Cannon in September 2019. He currently handles cases involving medical malpractice, product liability, commercial liability, and general liability (casualty and personal injury). Mr. Hemmer shares his life outside the law with his wife and their two children.


[i] Noel v. City of Rigby, 166 Idaho 575, 590, 462 P.3d 103, 118 (2020).

[ii] Idaho Code § 6-1603(1).

[iii] I.C. § 6-1603(4).

[iv] I.C. § 6-1603(4)(b).

[v] Carrillo v. Boise Tire Co., 152 Idaho 741, 747, 274 P.3d 1256, 1262 (2012).

[vi] Hennefer v. Blaine Cty. Sch. Dist., 158 Idaho 242, 253, 346 P.3d 259, 270 (2015).

[vii] Ballard v. Kerr, 160 Idaho 674, 708, 378 P.3d 464, 498 (2016).

[viii] Herrett v. St. Luke’s Magic Valley Reg’l Med. Ctr., Ltd., 164 Idaho 129, 136, 426 P.3d 480, 487 (2018).

[ix] Noel at 579, 462 P.3d at 111.

[x] Idaho Rule of Civil Procedure 51(g).

[xi] H.B. 582, 65th Leg., 2d Sess. (Idaho 2020).

[xii] See I.C. § 6-1603(3), which sets forth the jury procedure for application of the non-economic damages cap.

[xiii] Coombs v. Curnow, 148 Idaho 129, 139, 219 P.3d 453, 463 (2009).

[xiv] Id. at 139-40, 219 P.3d at 436-64.

[xv] Id. at 140, 219 P.3d at 464 (citation and internal quotation marks omitted).

[xvi] 57 Am.Jur.2d Negligence § 125.

[xvii] “Actually,” Dictionary, Merriam-Webster, (las accessed March 28, 2023).

[xviii] See Bradbury v. Idaho Judicial Council, 149 Idaho 107, 116-17, 233 P.3d 38, 47-48 (2009) (employing the Webster’s Dictionary definition of “actually” to determine the “common sense interpretation of ‘actually reside’”); see also Strickland v. Waymire, 126 Nev. 230, 236, 235 P.3d 605, 609-10 (Nev. 2010) (setting forth Webster’s definition of “actually” as “an actual or existing fact; really,” and holding the word “actually” worked to “vivify” an adjacent term in the constitutional clause at issue.  “This ‘may not be very heavy work for the [word ‘actually’] to perform, but a job is a job, and enough to bar the rule against redundancy from disqualifying an otherwise sensible reading.” Gutierrez v. Ada, 528 U.S. 250, 258, 120 S. Ct. 740, 145 L.Ed.2d 747 (2000)”).

[xix] Galloway v. Walker, 140 Idaho 672, 676, 99 P.3d 625, 629 (Ct. App. 2004).

[xx] It is worth noting that the Idaho Supreme Court, evaluating “reckless, willful and wanton” in the context of the Idaho Tort Claims Act, recently stated that the “specific kind of harm must be foreseeable.”  Mattson v. Idaho Dep’t of Health & Welfare, 172 Idaho 66, 529 P.3d 731, 742 (2023) (emphasis in original).  The definition of “reckless, willful and wanton conduct” under the ITCA is nearly identical to the definition provided by I.C. 6-1601(10).  Compare I.C. 6-904C.