Ford Motor Company v. Cosper

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 19, 2023
S23Q0625. FORD MOTOR COMPANY v. COSPER.
COLVIN, Justice.
Although product-liability claims are generally subject to a ten-
year statute of repose in Georgia, see OCGA § 51-1-11 (b) (2), the
statute of repose does not apply to negligence claims “arising out of
conduct which manifests a willful, reckless, or wanton disregard for
life or property,” OCGA § 51-1-11 (c). The U.S. District Court for the
Northern District of Georgia has certified to this Court two
questions regarding OCGA § 51-1-11 (c). The federal district court
asks (1) whether, under OCGA § 51-1-11 (c), “reckless” conduct is a
standalone exception to OCGA § 51-1-11 (b) (2)’s ten-year statute of
repose; and (2) if so, how “reckless” conduct is defined.
As explained below, we answer the first question in the
affirmative: under OCGA § 51-1-11 (c), reckless disregard for life or
property is a standalone exception to OCGA § 51-1-11 (b) (2)’s ten-
year statute of repose. Thus, OCGA § 51-1-11 (b) (2)’s statute of
repose does not apply to a product-liability claim sounding in
negligence that “aris[es] out of conduct which manifests . . . reckless
. . . disregard for life or property.” OCGA § 51-1-11 (c).
As further explained below, the answer to the second question
is that “reckless . . . disregard for life or property,” under OCGA § 51-
1-11 (c), carries a meaning that closely resembles the Restatement
(First) of Torts’ definition of “Reckless Disregard of Safety.”
Specifically, an actor’s “conduct . . . manifests a . . . reckless . . .
disregard for life or property,” under OCGA § 51-1-11 (c), if the actor
“intentionally does an act or 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 [person] to realize that the actor’s conduct
not only creates an unreasonable risk of [harm to another’s life or
property] but also involves a high degree of probability that
substantial harm will result to [the other’s life or property].”
Restatement (First) of Torts § 500 (1934) (defining “Reckless
2
Disregard of Safety”).
1. In its certification order, the federal district court
recounted the factual and procedural history of this case as follows:
This case arises out of a rollover accident (“the
Accident”) that occurred on December 25, 2015[,] in
Haralson County. During the Accident, the roof structure
(passenger side) in the crash-involved Ford Explorer
intruded into the occupant compartment. Cindy Pollard
was the driver of the Explorer. Ronnie Ammerson was
the front seat passenger. Mr. Ammerson suffered severe
cervical spinal (C6/C7) fractures with spinal cord trauma.
After months of rehabilitation, he was discharged to his
home where he succumbed to his injuries by pneumonia.
An autopsy concluded that the cause of death was acute
right lung pneumonia resulting from the cervical spine
trauma/quadriplegia sustained in the Accident.
...
Plaintiffs filed their original Complaint on May 6,
2018[,] and their First Amended Complaint on January 7,
2020.[1] In Count I, Plaintiffs asserted three strict
liability claims — design defect, manufacturing defect,
and failure to warn. In Count II, Plaintiffs asserted four
negligence claims — negligent design, negligent
manufacture, negligent sale, and negligent failure to
recall. Plaintiffs also sought attorneys’ fees, general
damages, special damages, punitive damages, and
recovery for wrongful death.
Ford filed a Motion for Summary Judgment on
1 The record indicates that the lawsuit was filed by plaintiffs Cindy
Cosper (formerly Cindy Pollard) “as surviving child of Ronnie Ammerson,” and
Allan Myers “as the Temporary Administrator of the Estate of Ronnie
Ammerson.”
3
March 15, 2022, arguing that all of Plaintiff[s’] claims
failed as a matter of law. Most relevant here, Ford
asserted that Georgia’s statute of repose barred Plaintiffs’
negligent design claims because Ford did not act willfully
or wantonly as a matter of law. In response, Plaintiffs
argued that the statute of repose did not bar their
negligent design claims because a jury could find that
Ford acted recklessly, willfully, or wantonly. Plaintiffs
conceded all other substantive claims. Ford replied on
May 6, 2022[,] and argued that: (1) recklessness is not an
independent exception to the statute of repose; and (2)
Plaintiffs failed to put forth enough evidence to support a
jury finding that Ford acted willfully or wantonly.
In ruling on Ford’s motion, the [federal district
court] held that Georgia’s statute of repose did not bar
Plaintiffs’ negligent design claims because a jury could
find that Ford’s actions were at least reckless.[2] To reach
this finding, the [district court] applied the Chrysler Grp.,
LLC v. Walden[, 339 Ga. App. 733 (792 SE2d 754) (2016)]
court’s interpretation of [OCGA] § 51-1-11 (c), the statute
governing exceptions to the statute of repose. The
[district court] applied Walden, a Georgia Court of
Appeals case, because it found that the Supreme Court of
Georgia had not addressed whether “recklessness” was an
independent exception to Georgia’s statute of repose. The
[district court] also upheld Plaintiffs’ request for punitive
damages based on the roof negligent design claim and
Plaintiffs’ request for attorneys’ fees. Finally, the Court
2 The federal district court noted:
The [federal district court] found that Plaintiffs’ evidence could
support a finding that Ford acted recklessly, willfully, or wantonly
when designing the subject Explorer’s roof. With respect to
Plaintiffs’ other negligent design claims (stability and restraint),
the [district court] found that Ford acted recklessly at most.
(Citations omitted; emphasis in original.)
4
dismissed all of Plaintiffs’ other substantive claims.
(Citations omitted; emphasis in original).
Ford filed a Motion to Certify Ruling for Interlocutory
Appellate Review, but the federal district court concluded that the
Eleventh Circuit would likely need to seek clarity from this Court to
resolve Ford’s appeal. Accordingly, the court denied Ford’s motion
and sua sponte certified to this Court the two questions of law
regarding OCGA § 51-1-11 (c) that we described above.
2. Generally, product-liability claims “filed more than ten
years after the date of the first sale for use or consumption of the
product are completely barred” under OCGA § 51-1-11 (b) (2)’s
statute of repose. Chrysler Corp. v. Batten, 264 Ga. 723, 725-726 (2)
(450 SE2d 208) (1994) (citation and punctuation omitted). See
OCGA § 51-1-11 (b) (1) (providing that a manufacturer is liable for
product defects that proximately cause injury); id. § 51-1-11 (b) (2)
(“No action shall be commenced pursuant to this subsection with
respect to an injury after ten years from the date of the first sale for
use or consumption of the personal property causing or otherwise
5
bringing about the injury.”). Under OCGA § 51-1-11 (c), however,
the statute of repose does not apply to certain product-liability
claims sounding in negligence. That provision, which was added to
the statute in 1987, see Ga. L. 1987, p. 613, states in relevant part
that OCGA § 51-1-11 (b) (2)’s ten-year statute of repose
shall also apply to the commencement of an action
claiming negligence of a manufacturer as the basis of
liability, except an action . . . arising out of conduct which
manifests a willful, reckless, or wanton disregard for life
or property.
OCGA § 51-1-11 (c) (emphasis supplied).
In Batten, we clarified that actions arising out of conduct that
manifests either “willful . . . disregard for life or property” or
“wanton disregard for life or property,” OCGA § 51-1-11 (c), are
exempted from OCGA § 51-1-11 (b) (2)’s statute of repose. See
Batten, 264 Ga. at 726 (3). There, we noted that “[w]ilful conduct”
is conduct involving “an actual intention to do harm or inflict injury,”
and “wanton conduct” is conduct that “is so reckless or so charged
with indifference to the consequences as to be the equivalent in
spirit to actual intent.” Id. (citation and punctuation omitted). We
6
then concluded that the plaintiff’s evidence was “insufficient as a
matter of law to support a finding that [the manufacturer’s] conduct
manifested a ‘willful, reckless, or wanton disregard for life or
property’” because that evidence had either “little” or “no” relevance
“in evaluating [the manufacturer’s] culpability” in designing its
product. Id. (citation omitted). Batten, however, did not separately
define the word “reckless” as used in OCGA § 51-1-11 (c), leaving
open the question of whether the statutory provision separately
exempts from the statute of repose negligence actions arising from
conduct that manifests “reckless . . . disregard for life or property.”
OCGA § 51-1-11 (c).
To answer that question, we must “examin[e] the statute’s
plain language,” Green v. State, 311 Ga. 238, 242 (1) (857 SE2d 199)
(2021) (citation and punctuation omitted), “view[ing] the statutory
text in the context in which it appears,” Thornton v. State, 310 Ga.
460, 462 (2) (851 SE2d 564) (2020) (citation and punctuation
omitted), “presuming that the General Assembly meant what it said
and said what it meant,” Star Residential, LLC v. Hernandez, 311
7
Ga. 784, 785 (1) (860 SE2d 726) (2021) (citation and punctuation
omitted), and “read[ing] the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
would,” Thornton, 310 Ga. at 463 (2) (citation and punctuation
omitted). “[F]or context, we may look to other provisions of the same
statute, the structure and history of the whole statute, and the other
law — constitutional, statutory, and common law alike — that forms
the legal background of the statutory provision in question.”
Thornton, 310 Ga. at 462-463 (2) (citations and punctuation
omitted).
We begin our construction of OCGA § 51-1-11 (c) by observing
that the word “or” is generally used in a disjunctive sense to signal
alternatives. See Rockdale County v. U.S. Enterprises, Inc., 312 Ga.
752, 765-766 (3) (b) (865 SE2d 135) (2021) (noting that the word “‘or’
is naturally understood as a disjunctive term that marks an
alternative” (citation and punctuation omitted)). See also Gearinger
v. Lee, 266 Ga. 167, 169 (2) (465 SE2d 440) (1996) (noting that,
although the word “or” can sometimes be interpreted as a
8
“reiterative term,” it usually operates as a “disjunctive term”).
Accordingly, if “or” is understood in its usual disjunctive sense, then
OCGA § 51-1-11 (c)’s phrase “arising out of conduct which manifests
a willful, reckless, or wanton disregard for life or property” identifies
three independent types of conduct that could exempt a claim from
the statute of repose: (1) “willful . . . disregard for life or property,”
(2) “reckless . . . disregard for life or property,” and (3) “wanton
disregard for life or property.” OCGA § 51-1-11 (c) (emphasis
supplied).
Ford argues that the “or” in the three-word phrase “willful,
reckless, or wanton” is not used in its ordinary, disjunctive sense
because that phrase is a “term of art” that “encompass[es] one
mindset, not three.” To support this proposition, Ford raises two
primary arguments, neither of which are persuasive. First, Ford
argues that Batten construed the phrase “willful, reckless, or
wanton” as “describ[ing] an entire mindset.” As explained above,
however, this Court in Batten provided separate definitions for
“[w]ilful conduct” and “wanton conduct.” Batten, 264 Ga. at 726 (3).
9
We did not purport to provide a singular definition for the entire
phrase. Nor did we state that the terms “willful,” “reckless,” and
“wanton” have the same meaning. Although Batten did not
separately define the word “reckless” in OCGA § 51-1-11 (c), Batten’s
conclusion that two of the three terms in that phrase have distinct
meanings is in tension with Ford’s contention that OCGA § 51-1-11
(c) uses the three-word phrase as a term of art that describes a
singular “mindset” or a singular type of “conduct.”
Second, Ford contends that OCGA § 51-1-11 (c)’s phrase
“willful, reckless, or wanton” is a term of art because legal scholars
have said that the terms “willful,” “reckless,” and “wanton” are
related and Georgia cases and statutes frequently list the three
terms together. As explained below, however, the authorities on
which Ford relies do not show that Georgia law leading up to OCGA
§ 51-1-11 (c)’s enactment treated the three-word phrase as a term of
art carrying a meaning that was distinct from the meaning of each
constituent term.
As Ford points out, Prosser and Keeton on Torts explains that
10
“the words ‘willful,’ ‘wanton,’ or ‘reckless’” have often “been grouped
together” as forms of “quasi-intent,” which “[lie] between intent to
do harm . . . [and] ordinary negligence” and “apply to conduct which
is still, at essence, negligent, rather than actually intended to do
harm, but which is so far from a proper state of mind that it is
treated in many respects as if it were so intended.” Prosser and
Keeton on Torts 212-213 (W. Page Keeton ed., 5th ed. 1984)
(footnotes and punctuation omitted). In particular, Ford highlights
the treatise’s observation that “the three terms [‘willful,’ ‘wanton,’ or
‘reckless’] have been treated as meaning the same thing, or at least
as coming out at the same legal exit.” Id. at 212 (emphasis supplied).
But Ford has not shown that this general description of the
words “willful,” “wanton,” and “reckless” tracks their use in Georgia
law. A review of Georgia civil cases leading up to the enactment of
OCGA § 51-1-11 (c) in 1987 reveals that this Court and the Georgia
Court of Appeals often used the terms “willful,” “wanton,” and
“reckless” together when describing conduct that was more culpable
than negligence and that was likely to cause harm. See, e.g., Aetna
11
Life Ins. Co. v. Carroll, 169 Ga. 333, 342 (150 SE 208) (1929) (“Wilful
misconduct is much more than mere negligence, or even than gross
negligence. It involves conduct of a quasi-criminal nature, the
intentional doing of something either with the knowledge that it is
likely to result in serious injury, or with a wanton and reckless
disregard of its probable consequences.”); Truelove v. Wilson, 159
Ga. App. 906, 908 (4) (285 SE2d 556) (1981) (“Wilful and wanton
conduct . . . is conduct such as to evidence a wilful intention to inflict
the injury, or else was so reckless or so charged with indifference to
the consequences as to justify the jury in finding a wantonness
equivalent in spirit to actual intent. . . . There is an element of
intent, actual or imputed, in ‘wilful and wanton conduct’ which
removes such conduct from the range of conduct which may be
termed negligent.” (citation, punctuation, and emphasis omitted));
Blanchard v. Westview Cemetery, Inc., 124 Ga. App. 195, 211 (5) (183
SE2d 399) (1971) (Evans, J., dissenting) (noting that, “in a suit for
wrongfully disinterring a dead body, . . . if the injury has been
wanton and malicious or the result of gross negligence or a reckless
12
disregard of the rights of others, equivalent to an intentional
violation of them, exemplary damages may be awarded”), adopted
as the decision of the Court by Blanchard v. Westview Cemetery, Inc.,
228 Ga. 461 (186 SE2d 92) (1971); Central of Ga. R. Co. v. Pelfry, 11
Ga. App. 119, 123 (74 SE 854) (1912) (“While the rule is well settled
that in case of the death of a trespasser, recovery can be had only
where the homicide was the result of wanton or willful conduct on
the part of the servants of the defendant, it is a mistake to assume
that the homicide must be shown to have been intentional in point
of fact; for if the conduct of the defendant’s servants was so reckless
as to evidence an utter disregard of consequences, the law would
imply willfulness and an intention to do the wrong.”).
Some Georgia cases grouped “willful,” “wanton,” and “reckless”
conduct together under the generic label of “willful and wanton”
conduct, but even those cases appeared to draw conceptual
distinctions between some or all of these terms. See Truelove, 159
Ga. App. at 908 (4) (discussing different uses of the phrase “wilful
and wanton”). For example, in Carr v. John J. Woodside Storage
13
Co., 217 Ga. 438 (123 SE2d 261) (1961), we described “willful”
conduct and “wanton” conduct in terms that track Batten’s
definitions. Compare Carr, 217 Ga. at 444 (1) (holding that the trial
evidence could support a finding that a driver’s “conduct was such
as to evince a wilful intention to inflict the injury which caused [the
decedent’s] death, or else was so reckless or so charged with
indifference to the consequences, where human life was involved, as
to justify the jury to find a wantonness equivalent in spirit to actual
intent”), with Batten, 264 Ga. at 726 (3) (defining “[w]ilful conduct”
as conduct involving “an actual intention to do harm or inflict injury”
and “wanton conduct” as conduct that “is so reckless or so charged
with indifference to the consequences as to be the equivalent in
spirit to actual intent” (citation and punctuation omitted)). See also
Lumley v. Pollard, 61 Ga. App. 681, 694 (2) (7 SE2d 308) (1940)
(Allegations that a train engineer had “constructive knowledge” of a
dead body on the tracks were insufficient to “sustain the conclusion
that the engineer’s acts were wilful and wanton. Nor do any facts
alleged show such a reckless disregard of the rights of others as to
14
amount to wilfulness and wantonness.”).
In sum, pre-1987 Georgia civil cases reveal that the words
“willful,” “reckless,” and “wanton” were often used together when
describing related forms of conduct, all of which were more culpable
than negligence and were likely to cause harm. However, we have
not identified any pre-1987 Georgia civil case providing a unified
definition for the three-word phrase “willful, reckless, or wanton” or
a variation thereof.3
3 Citing several cases, Ford argues that “[t]he sequenced listing or use of
the terms ‘willful,’ ‘wanton,’ and ‘reckless’ is found throughout more than a
century of Georgia jurisprudence.” See Hale v. Hale, 199 Ga. 150, 154 (2) (33
SE2d 441) (1945) (“[I]t is . . . well established that for a wanton and willful tort
or for a reckless disregard of the rights of others, equivalent to an intentional
tort by the defendant, the injured party may recover for the mental pain and
anguish suffered therefrom.” (citation and punctuation omitted)); Southern R.
Co. v. Chatman, 124 Ga. 1026, 1036 (2) (53 SE 692) (1906) (“An owner of
property is not ordinarily required to anticipate that trespassers will come
upon it, and to prepare its property for them, or guard against possible injury
to them. Hence arises the general statement of the rule as to liability only for
wanton, willful, or reckless injury, looking at the trespasser as such solely, and
without reference to the existence of any relation creating a duty. The duty
not to willfully or recklessly injure another may be said to be due from all men
to all men.”); Central R. & Banking Co. v. Denson, 84 Ga. 774, 777 (11 SE 1039)
(1890) (“[C]ontributory negligence cannot be relied upon in . . . . any case where
the action of the defendant is wanton, willful, or reckless, in the premises, and
injury ensues as the result.” (citation and punctuation omitted)). Ford also
cites another statute in which the General Assembly has used all three words.
See OCGA § 16-2-1 (b) (“Criminal negligence is an act or failure to act which
15
Moreover, the historical context of OCGA § 51-1-11 (c)’s
enactment reveals that the General Assembly was aware that, at
least in some circumstances, the terms “willful,” “reckless,” and
“wanton” could invoke distinct concepts. See Thornton, 310 Ga. at
462-463 (2) (noting that “we may look to . . . [the] history of the whole
statute” for context when interpreting a statute (citation and
punctuation omitted)). Specifically, OCGA § 51-1-11 (c) was enacted
at the same time as Georgia’s punitive-damages statute, OCGA § 51-
12-5.1 (b). See Ga. L. 1987, pp. 613, 917-918. But although OCGA
§ 51-1-11 (c) refers to “willful, reckless, or wanton” conduct, OCGA
§ 51-12-5.1 (b) permits punitive damages for “willful misconduct”
and “wantonness” without expressly mentioning “reckless” conduct.
OCGA § 51-12-5.1 (b) (“Punitive damages may be awarded only in
demonstrates a willful, wanton, or reckless disregard for the safety of others
who might reasonably be expected to be injured thereby.”). In addition, Ford
cites Black’s Law Dictionary to argue that, because “willful and wanton acts
[are defined] as reckless or done in reckless disregard,” the three terms “are
descriptive of each other.” But these authorities do not state that the words
“willful,” “reckless,” and “wanton” have the same meaning or indicate that the
three-word phrase “willful, reckless, or wanton” has an established meaning
as a term of art. At most, these authorities show that the three terms refer to
related concepts, as we have acknowledged above.
16
such tort actions in which it is proven by clear and convincing
evidence that the defendant’s actions showed willful misconduct,
malice, fraud, wantonness, oppression, or that entire want of care
which would raise the presumption of conscious indifference to
consequences.” (emphasis supplied)). The fact that the General
Assembly delineated all three terms in OCGA § 51-1-11 (c) but
expressly included only two of them in OCGA § 51-12-5.1 (b) further
supports the conclusion that the “or” in OCGA § 51-1-11 (c)’s phrase
“willful, reckless, or wanton” serves its usual function of setting off
a list of alternatives.
For all the reasons stated above, we conclude that the “or” in
OCGA § 51-1-11 (c) should be understood in its ordinary, disjunctive
sense, and thus that “reckless . . . disregard for life or property” is a
standalone exception to the statute of repose, so long as the word
“reckless” is susceptible of an independent meaning. See Rockdale
County, 312 Ga. at 766 (3) (b). That brings us to the second certified
question.
3. The second certified question asks us to define “reckless
17
. . . disregard for life or property,” as used in OCGA § 51-1-11 (c). We
acknowledge at the outset that the word “reckless” can bear different
meanings in different contexts. See McIver v. State, 314 Ga. 109,
126 (2) (d) (875 SE2d 810) (2022) (noting that “the term ‘reckless’
has been somewhat elastic and has had different meanings in
different contexts”). See also Black’s Law Dictionary 1270 (6th ed.
1990) (defining “[r]eckless” as “[n]ot recking; careless, heedless,
inattentive; indifferent to consequences,” but noting that,
“[a]ccording to circumstances [‘reckless’] may mean desperately
heedless, wanton or willful, or it may mean only careless,
inattentive, or negligent” (emphasis supplied)). Further, as
explained below, when OCGA § 51-1-11 (c) was enacted, Georgia law
did not clearly define “reckless,” as that term was used in civil cases.
Nevertheless, interpreting OCGA § 51-1-11 (c) in its historical
context and with reference to the canons of construction, we
conclude below that the phrase “reckless . . . disregard for life or
property” in the statute bears a meaning that closely resembles the
Restatement (First) of Torts’ definition of the phrase “Reckless
18
Disregard of Safety.”
(a) The parties each contend that the word “reckless” had a
settled meaning in Georgia when OCGA § 51-1-11 (c) was enacted,
but their arguments are unpersuasive. As explained below, the
authorities on which they rely do not establish a clear definition of
the term for purposes of civil cases.
(i) Ford argues that the word “reckless” in OCGA § 51-1-11
(c) is synonymous with the definition of the crime of “Reckless
Conduct,” which, at the time OCGA § 51-1-11 (c) was enacted,
provided that:
A person commits a misdemeanor when he causes bodily
harm to or endangers the bodily safety of another person
by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause the
harm or endanger the safety, and the disregard
constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the
situation.
Ga. L. 1968, pp. 1325-1326.4 According to Ford, “reckless” in OCGA
4 The current statute criminalizing reckless conduct includes similar
language. See OCGA § 16-5-60 (b) (“A person who causes bodily harm to or
endangers the bodily safety of another person by consciously disregarding a
19
§ 51-1-11 (c) must be understood to carry the same meaning as the
crime of “reckless conduct” because “[t]he General Assembly has
provided but one definition” of “reckless conduct,” and that
definition appears in its definition of the crime. We disagree.
Although there is an “elementary rule of statutory construction
that statutes relating to the same subject matter are ‘in pari
materia’” and generally should be “construed together and
harmonized,” In the Interest of T. B., 313 Ga. 846, 853 (3) (874 SE2d
101) (2022) (citation and punctuation omitted), the product-liability
statute and the statute defining the crime of reckless conduct are
not related to the same subject matter. The former statute is civil
in nature whereas the latter statute is criminal, and Ford has not
provided any authority suggesting that the definition of a crime
should be imported into the civil product-liability statute.
Further, the text of the two statutes does not indicate that
substantial and unjustifiable risk that his or her act or omission will cause
harm or endanger the safety of the other person and the disregard constitutes
a gross deviation from the standard of care which a reasonable person would
exercise in the situation is guilty of a misdemeanor.”).
20
OCGA § 51-1-11 (c) incorporates the criminal definition of “Reckless
Conduct.” This is because the criminal statute defines the crime of
“Reckless Conduct,” Ga. L. 1968, pp. 1325-1326, and does not use or
define “reckless” as a standalone term, see McIver, 314 Ga. at 126
(2) (d) (noting that “the word ‘reckless’ itself is not included in the
statutory definition of the offense denominated as ‘reckless
conduct’”). Given that OCGA § 51-1-11 (c) uses the phrase “conduct
which manifests a . . . reckless . . . disregard for life or property,”
rather than the phrase “reckless conduct,” there is no
straightforward way to import the definition of “reckless conduct”
into OCGA § 51-1-11 (c).
Moreover, we have previously declined to use the criminal
definition of “reckless conduct” when interpreting a similar phrase
in the “criminal negligence” statute, which criminalizes “an act . . .
which demonstrates a . . . reckless disregard for the safety of others
who might reasonably be expected to be injured thereby.” McIver,
314 Ga. at 126-127 (2) (d) (quoting OCGA § 16-2-1) (“The distinction
between [‘criminal negligence’ and ‘reckless conduct’] is found in the
21
statutory requirements in OCGA § 16-5-60 (b) that the person
‘consciously disregard a substantial and unjustifiable risk’ that is a
‘gross deviation’ from a reasonable standard of care.” (citation and
punctuation omitted)). See also Major v. State, 301 Ga. 147, 150 (1)
(800 SE2d 348) (2017) (not relying on the definition of the crime of
“reckless conduct” when interpreting the word “reckless” in the
terroristic-threats statute, which provides that a person commits an
offense if he “threatens to commit any crime of violence, to release
any hazardous substance, . . . or to burn or damage property . . . in
reckless disregard of the risk of causing such terror or
inconvenience” (citation and punctuation omitted)). Thus, the
definition of the crime of “reckless conduct” does not always serve as
the definition of the term “reckless” even within the criminal
context.
(ii) Cosper, by contrast, argues that Arrington v. Trammell,
83 Ga. App. 107 (62 SE2d 451) (1950), which quoted from the
Restatement (First) of Torts’ definition of “Reckless Disregard of
Safety,” see Arrington, 83 Ga. App. at 111, established the meaning
22
of “reckless” for Georgia civil cases prior to OCGA § 51-1-11 (c)’s
enactment. But Arrington discussed “reckless” conduct only in the
context of defining “wanton” conduct, and the case expressly
conflated the two terms. See Arrington, 83 Ga. App. at 110-112(deciding “whether there was any evidence to authorize a finding by
the jury that the conduct of the defendant amounted to wantonness,”
which was “the sole issue” on appeal, and defining the phrase
“reckless (wanton) misconduct” (emphasis supplied)). Thus,
although we conclude below that the Restatement (First) of Torts’
definition of “Reckless Disregard of Safety” closely resembles the
meaning of “reckless” in OCGA § 51-1-11 (c), Arrington did not
provide a clear definition of “reckless” as a standalone term.
(b) Although Georgia law had not clearly defined “reckless”
as that term was used in civil cases prior to OCGA § 51-1-11 (c)’s
enactment, our precedent leading up to the statute’s enactment,
together with the canons of construction, provide guidance for how
to understand the word “reckless” in the statute. “Because the
legislature is presumed to know the condition of the law and to enact
23
statutes with reference to it,” Williams v. State, 299 Ga. 632, 634
(791 SE2d 55) (2016) (citation and punctuation omitted), the legal
backdrop against which a statute is enacted is often a key indicator
of a statute’s meaning, see Thornton, 310 Ga. at 462-463 (2) (noting
that we consider the historical legal context in which a statute was
enacted when interpreting the statute’s text).
Here, as we observed in Division 2 above, Georgia precedent
leading up to the enactment of OCGA § 51-1-11 (c) indicates that the
word “willful” was generally understood to refer to conduct involving
an “intention to inflict [an] injury,” whereas “wanton” was
understood to refer to conduct that “was so reckless or so charged
with indifference to the consequences” that it was “equivalent in
spirit to actual intent.” Carr, 217 Ga. at 444 (1).
Further, Georgia case law leading up to OCGA § 51-1-11 (c)’s
enactment, considered together with the associated-words canon,
suggests that the word “reckless” in the statute refers to conduct
that is more culpable than negligence and that is likely to cause
harm. The associated-words canon counsels that a word in a statute
24
“should be understood in relation to the other words in the statute.”
Kinslow v. State, 311 Ga. 768, 773 (860 SE2d 444) (2021). Here,
OCGA § 51-1-11 (c) includes the word “reckless” in a list with
“willful” and “wanton,” suggesting that the three words are related,
and pre-1987 Georgia precedent makes the nature of that
relationship clear. Specifically, as we explained in Division 2 above,
that case law frequently used these three terms together when
describing conduct that was more culpable than negligence and that
involved a high risk of harm.
Our historical definitions of the terms “willful” and “wanton”
further suggest that the three terms — willful, wanton, and reckless
— fall on a spectrum of culpable conduct, with willful conduct being
the most culpable and reckless conduct being the least culpable.
Specifically, as noted above, “willful” conduct has been described as
involving “an actual intent to do harm or inflict injury.” Batten, 264
Ga. at 726 (3). See Carr, 217 Ga. at 444 (1) (describing willful
conduct as involving “a wilful intention to inflict the injury”).
Wanton conduct, by contrast, does not involve an actual intent to
25
harm or inflict injury but is nevertheless described as highly
culpable conduct that is “equivalent in spirit to actual intent” to do
harm or inflict injury. Batten, 264 Ga. at 726 (3) (citation and
punctuation omitted). See Carr, 217 Ga. at 444 (1) (describing
wanton conduct as “equivalent in spirit to actual intent”). The
definition of “wanton” conduct further suggests that what primarily
differentiates such conduct from “reckless” conduct is the degree of
reckless indifference exhibited. Specifically, “wanton” conduct
involves a greater degree of reckless indifference than “reckless”
conduct alone: conduct is “wanton” if it is “so reckless or so charged
with indifference to the consequences as to be the equivalent in spirit
to actual intent.” Batten, 264 Ga. at 726 (3) (citation and
punctuation omitted; emphasis supplied). See also Carr, 217 Ga. at
444 (1) (describing wanton conduct as that which “was so reckless or
so charged with indifference to the consequences, where human life
was involved, as to justify the jury to find a wantonness equivalent
in spirit to actual intent” (emphasis supplied)); Truelove, 159 Ga.
App. at 908 (4) (describing “wanton conduct” as that which “was so
26
reckless or so charged with indifference to the consequences as to
justify the jury in finding a wantonness equivalent in spirit to actual
intent” (citation, punctuation and emphasis omitted; emphasis
supplied)); Arrington, 83 Ga. App. at 112 (noting that there were
Georgia cases holding that wantonness could not be established
absent “proof that the misconduct is reckless in the degree that the
jury would be justified to find it equivalent in spirit to actual intent”
(emphasis supplied)). 5
5 We acknowledge that including both “wanton” and “reckless” in
OCGA § 51-1-11 (c), when “wantonness” is primarily understood as involving
a greater degree of reckless indifference than “reckless” conduct alone, appears
to be in tension with the surplusage canon, which counsels that we should
interpret statutory language so as to avoid redundancy when possible. See
Camden County v. Sweatt, 315 Ga. 498, 509 (2) (b) (883 SE2d 827) (2023)
(“[C]ourts generally should avoid a construction that makes some language
mere surplusage.” (citation and punctuation omitted)). But the long history of
defining “wantonness” in terms of “recklessness” indicates that some degree of
redundancy in OCGA § 51-1-11 (c) is not only unavoidable but also acceptable.
See Williams, 299 Ga. at 634 (noting that the legislature enacts statutes
against the backdrop of, and with reference to, existing law). Further, any
overlap in the meaning of “wanton” and “reckless” in OCGA § 51-1-11 (c), or in
the effect of including both terms in the statute, is less concerning when the
provision is considered in its broader statutory context. Specifically, the
inclusion of “reckless” in OCGA § 51-1-11 (c), when only “willful” and
“wanton[ ]” conduct are included in the punitive-damages statute, OCGA § 51-
12-5.1 (b), suggests that a greater degree of culpability is required for a plaintiff
to recover punitive damages than to overcome the statute of repose for product-
liability claims.
27
To summarize, then, the language of OCGA § 51-1-11 (c),
considered in context with the help of the associated-words canon,
indicates that “reckless” conduct is less culpable than “willful” and
“wanton” conduct, but like “willful” and “wanton” conduct, is both
more culpable than “negligent” conduct and likely to cause harm.
(c) The broader legal context in which OCGA § 51-1-11 (c)
was enacted supplies the remaining broad contours of a definition of
“reckless” as used in the statute. Particularly relevant to our
consideration of the broader legal context is the Restatement of
Torts, which synthesizes legal principles commonly applied across
United States jurisdictions. See Restatement (First) of Torts Intro.
(1934) (“The object of the Institute in preparing the Restatement is
to present an orderly statement of the general common law of the
United States, including in that term not only the law developed
solely by judicial decision, but also the law that has grown from the
application by the courts of statutes that have been generally
enacted and have been in force for many years.”).
The Restatements are not Georgia law, but when OCGA § 51-
28
1-11 (c) was enacted in 1987, relying on the First and Second
Restatement of Torts for relevant context in interpreting and
applying Georgia law was a well-established practice in this state.
For example, we had relied on the Restatement (Second) of Torts
when defining what it meant for a product to be defective under
Georgia’s product-liability statute, see Center Chem. Co. v. Parzini,
234 Ga. 868, 869-870 (3), (4) (218 SE2d 580) (1975), when
determining whether certain negligent conduct amounted to “wilful
or wanton” conduct authorizing an award under Georgia’s punitive-
damages statute, Gen. Refractories Co. v. Rogers, 240 Ga. 228, 230-
231 & n.1 (239 SE2d 795) (1977), and when explaining the meaning
of “intent” for purposes of intentional torts under Georgia law,
Reeves v. Bridges, 248 Ga. 600, 603 (284 SE2d 416) (1981). See also,
e.g., Stewart v. Williams, 243 Ga. 580, 582-583 (2) (255 SE2d 699)
(1979) (relying on the Restatement (Second) of Torts when
determining the burden of proving a statutorily defined affirmative
defense asserted against a false-imprisonment claim); Cox v.
Cambridge Square Towne Houses, Inc., 239 Ga. 127, 128-129 (236
29
SE2d 73) (1977) (adopting the Restatement (First) of Torts’ approach
to determining when the statute of limitations has run on certain
nuisance claims); Garren v. Southland Corp., 235 Ga. 784, 785-786
(221 SE2d 571) (1976) (relying on the Restatement (First) of Torts
when determining whether “the word ‘communicated’ and the word
‘publication’” in Georgia’s libel statute were “broad enough to
include the reading aloud of a written defamation”); Brand v.
Montega Corp., 233 Ga. 32, 34 (2) (209 SE2d 581) (1974) (consulting
the Restatement (Second) of Torts for guidance on when a surface-
water invasion constitutes a trespass).
As explained below, the Restatement (First) of Torts provides
a definition of “Reckless Disregard of Safety” that is largely
consistent with how the term “reckless” had been used in Georgia
civil cases leading up to OCGA § 51-1-11 (c)’s enactment.
The Restatement defines “Reckless Disregard for Safety” as
follows:
The actor’s conduct is in reckless disregard of the safety
of another if he intentionally does an act or fails to do an
act which it is his duty to the other to do, knowing or
30
having reason to know of facts which would lead a
reasonable man to realize that the actor’s conduct not
only creates an unreasonable risk of bodily harm to the
other but also involves a high degree of probability that
substantial harm will result to him.
Restatement (First) of Torts § 500.6
6 The Restatement (Second) of Torts provides a similar definition of
“Reckless Disregard of Safety,” the chief difference being that the First
Restatement states that reckless conduct “involves a high degree of probability
that substantial harm will result,” Restatement (First) of Torts § 500, whereas
the Second Restatement states that reckless conduct involves a risk that “is
substantially greater than that which is necessary to make [the actor’s]
conduct negligent,” Restatement (Second) of Torts § 500 (1965). The Second
Restatement explains that an amount of risk that “is substantially greater
than that which is necessary to make [the actor’s] conduct negligent” involves
a risk “which is not merely in excess of [the conduct’s] utility, but which is out
of all proportion thereto.” Restatement (Second) of Torts § 282 cmt. (e). But
phrases such as “a high degree of probability” and “substantial harm,” which
are used in the First Restatement, better resemble legal tests that Georgia
courts are accustomed to applying. See, e.g., In the Matter of Skinner, 295 Ga.
217, 219 (758 SE2d 788) (2014) (concluding that the improper disclosure of
confidential information did not “work[ ] or threaten[ ] substantial harm to the
interests of the client”); Minor v. Barwick, 264 Ga. App. 327, 335 (1) (590 SE2d
754) (2003) (concluding that the evidence presented on summary judgment
could support a finding that the defendants were aware that the decedent
“faced a substantial risk of serious harm”); Trimble v. Cir. City Stores, Inc., 220
Ga. App. 498, 501 (469 SE2d 776) (1996) (holding that it was possible for the
plaintiff to prove, within the framework of the complaint, “circumstances in
which there was no certainty, but merely a high degree of probability[,] that
the mental distress would follow, and the defendant went ahead in conscious
disregard of it” (citation and punctuation omitted)). Because the language used
in the First Restatement is more consistent with Georgia law, and because the
Second Restatement indicates that “[n]o change in substance [was] intended”
by “rewording” the First Restatement’s definition, Restatement (Second) of
Torts § 500 Reporter’s Notes, we focus on the First Restatement’s definition of
“Reckless Disregard of Safety” rather than the Second Restatement’s definition
of that term.
31
Consistent with the Georgia case law discussed in Division 2
above, the Restatement explains that “reckless” conduct is more
culpable than “negligent” conduct and involves a high risk of harm.
Specifically, the Restatement states that recklessness differs from
negligence in that recklessness “requires a conscious choice of a
course of action either with knowledge of the serious danger to
others involved in it or with knowledge of facts which would disclose
this danger to any reasonable man”; and that reckless conduct “must
contain a risk of harm to others in excess of that necessary to make
the conduct unreasonable and therefore[ ] negligent.” Restatement
(First) of Torts § 500, cmts. (a), (g).
Further, consistent with the Georgia case law discussed in
Division 3 (b) above, the Restatement clarifies that “reckless”
conduct is distinct from, and less culpable than, conduct deemed
intentional. Specifically, the Restatement explains that “[r]eckless
misconduct differs from intentional wrongdoing” because a reckless
actor “does not intend to cause the harm which results” and may
“even . . . hope[ ] or . . . expect[ ] that his conduct will prove
32
harmless.” Id. § 500, cmt. (f). According to the Restatement,
conduct can be “reckless” so long as the actor “realizes or, from facts
which he knows, should realize that there is a strong probability
that harm may result,” and the Restatement further clarifies that
“a strong probability is a different thing from the substantial
certainty without which [an actor] cannot be said to intend the harm
in which his act results.” Id.
Given that the Restatement’s definition of “Reckless Disregard
of Safety” describes “reckless” conduct as being more culpable than
“negligent” conduct, as being less culpable than conduct deemed
“intentional,” and as involving a high risk of harm, the definition is
consistent with how the word “reckless” was used in Georgia civil
cases leading up to OCGA § 51-1-11 (c)’s enactment.
One aspect of the Restatement’s definition, however, does not
fit well with OCGA § 51-1-11 (c). Specifically, the Restatement
focuses solely on reckless disregard for safety, whereas the statute
concerns “conduct which manifests a . . . reckless . . . disregard for
life or property.” OCGA § 51-1-11 (c) (emphasis supplied). To give
33
effect to the specific language of the statute, then, the legal
principles underlying the Restatement’s definition of “Reckless
Disregard of Safety” must be tailored to fit with the statutory phrase
“life or property.” Accordingly, we hold that an actor’s “conduct . . .
manifests a . . . reckless . . . disregard for life or property,” under
OCGA § 51-1-11 (c), if the actor intentionally does an act or 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 person to
realize that the actor’s conduct not only creates an unreasonable risk
of harm to another’s life or property but also involves a high degree
of probability that substantial harm will result to the other’s life or
property.7
7 In Chrysler Group, LLC v. Walden, 339 Ga. App. 733 (792 SE2d 754)
(2016), the Georgia Court of Appeals indirectly relied on the Restatement
(First) of Torts in providing the following definition of “reckless” conduct under
OCGA § 51-1-11 (c):
[A] reckless act [is] an act that is “intended by the actor, [although]
the actor does not intend to cause the harm which results from it.
It is enough that he realize or, from facts which he knows, should
realize that there is a strong probability that harm may result,
even though he hopes or even expects that his conduct may prove
harmless.”
Walden, 339 Ga. App. at 737 (1) (a) (third alteration in original) (quoting
34
Certified questions answered. All the Justices concur.
Arrington, 83 Ga. App. at 112, which was quoting the Restatement (First) of
Torts § 500 cmt. (f)). As described above, the legal principles included in this
definition are relevant in determining whether conduct is “reckless.” See
Restatement (First) of Torts § 500 cmt. (f). However, Walden’s definition of
“reckless” conduct was incomplete and failed to acknowledge several important
features of the definition of “reckless” we have provided above. Among other
things, Walden’s definition did not incorporate the reasonable person standard
and failed to acknowledge that recklessness involves the creation of an
unreasonable and substantial risk of harm. Accordingly, Walden is
disapproved to the extent that it conflicts with the definition we have provided
above.
35