What Is Negligence Per Se in an Injury Case?

Dictionary definition of word negligence, selective focus.

Negligence per se is a legal principle where a person is automatically considered to be negligent because he or she violated an existing statute, injuring a person who was supposed to be protected by the statute. If you have been injured by a person acting negligently, you may have a personal injury claim arising from the other person’s negligent conduct. If the person has violated any existing laws, proving your case may be easier. This is because you will not have to prove that the person owed you a duty of care and breached this duty. Instead, you will only need to show that the person violated an existing law intended to protect you.

Typical examples of negligence per se are drivers exceeding speed limits, driving while intoxicated, or building codes not being adhered to.

To understand the concept of negligence per se, we must first look at what negligence means in the legal system.

What Is Negligence?

Negligence means the same thing as carelessness. In personal injury claims, it is where a person causes harm to another by his or her carelessness. Negligence laws are aimed at preventing unreasonable risks of harm to other people. If you have been injured by the negligent conduct of another person, you may be able to recover damages for the harm suffered. You have to prove four elements for your claim to be successful. These are:

  1. The other person owed you a duty of care
  2. The person breached this duty
  3. The person’s negligent conduct caused you an injury
  4. You suffered damages as a result of your injuries from the other person’s conduct.

The first two requirements establish negligence. The second two requirements are to show that you suffered some form of damages as a result of the person’s negligence. All four elements must exist to be able to make a claim.

A duty of care is a legal obligation owed by one person to another to practice reasonable care and caution when engaging in an activity that may foreseeably cause harm. In general, a duty of care arises when a person or group engages in some form of activity that could reasonably harm anyone else, physically, mentally or emotionally. For example, if you drive a car, you then have a duty of care towards other drivers, passengers, or pedestrians, since you are able to harm them by not taking reasonable precautions while driving.

There are usually four situations when a duty of care arises. First is when a person participated in creating a risk. For example, if a store attendant washes a floor, leaves it wet and does not display signs to prevent people from walking or slipping on the wet floor. The Second would be when the person volunteers to protect another from harm. Third occurs when a person engages in actions that he or she should know might cause harm to others. An example of this is when a person drives at night. He or she should know to take care and exercise proper caution, such as driving with lights on, so that pedestrians and other cars are able to see the car adequately and avoid any collisions. The final situation is where there is a relationship between the parties, such as a hotel owner and guest, or a person who has invited others onto his or her property.

Breaching this duty of care means that the person causing the harm did not follow what this duty of care required of him or her.

Negligence is determined by considering what a reasonable person would do in the same circumstances. If a reasonable person would foresee the possibility of harm arising out of his or her conduct and would take steps to prevent the harm from occurring, then the defendant is held to that standard. If the defendant in the circumstances should have foreseen the possibility of harm arising out of his or her conduct, should have taken steps to avoid such harm, and failed to take such steps, then he or she would be considered negligent.

Negligence Per Se

Negligence per se is a legal doctrine in which a person is considered automatically negligent by violating a statute. Under this doctrine, the requirement of establishing a duty of care is no longer necessary, as negligence per se is based on the applicability of an existing statute that has been violated.

Negligence per se also fixes the standard of care required. Under normal negligence rules, the standard of care required is a flexible one which is decided on a case-by-case basis. For example, driving a car through an intersection at 25mph would usually be considered reasonable. This may be different if there are many pedestrians around, or near a school where there is a greater possibility of someone being in the intersection and a increased risk of hitting a pedestrian.

However, using negligence per se, the standard of care is set by statute and is inflexible. So, in the example considered, if a statute prohibits driving over 25mph through an intersection, then the threshold for negligence is set. Either the driver drives over 25mph through the intersection, violates the statute, and is then negligent, or he or she drives at a lower speed, and is not negligent. There is no longer any flexibility or a need to argue the foreseeability of harm. Either the person violated the law, or he or she didn’t.

The difference between ordinary negligence and negligence per se is that in negligence per se, you do not need to establish a duty of care and a breach of that duty. Instead, you need to establish that an applicable statute was violated.

Strict Liability

Strict liability claims can increase your recovery. Strict liability exists when a defendant is held liable for committing an action, even if he or she was not at fault. This means that it is established without consideration of the defendant’s mental state or intent. Strict liability applies to specific situations, and only requires that the defendant caused injuries. Examples of strict liability include product liability, where you are injured by some sort of defect in a product, or dog bite cases. In these instances, negligence does not need to be proven.

There is a nuanced difference between negligence per se and strict liability. For strict liability, there is a presumption of liability, meaning that the offending party is presumed liable due to breaching the law. For negligence per se, the offending person is presumed negligent by breaching the law, but you will still need to prove damages to be able to hold that person liable.

Proving Negligence Per Se

While violating existing statutes inherently makes a person’s conduct negligent, a successful negligence claim must be based on negligence that causes harm. Therefore, in proving negligence per se, it must still be proven that the negligent person’s actions caused you some form of injury or harm, and the elements of causation and damages must be proven. There are four requirements needed to prove a negligence per se injury case.

  1. The person violated an existing statute.
  2. The violation of the statute caused your injury.
  3. You are a member of a class of persons that the statute was meant to protect.
  4. You suffered the type of harm that the statute intended to prevent.

The first two elements are factual issues to be determined. For the first element, a statute prohibits certain acts, and if the other person committed acts that the statute prohibits, then he or she has violated the law. As to the second element, you need to show factual or actual causation and proximate causation. This means that you would not have suffered harm without the conduct of the negligent person, that the harm suffered was not too remote, and was foreseeable as a result of the negligent person’s conduct.

Once you have proven that the other person broke the law, which led to your injuries or damages, you must prove that you are in a class of persons protected by the statute and that the statute intended to protect the type of harm that you suffered. This involves discerning the intentions of the statute. Most statutes on which negligence per se claims are based are clear. They aim to prevent some sort of harm, such as bodily injury and state this intent within the text itself.

Class of Persons That the Statute Intended to Protect

While the class of people to be protected is often stated in the text of the statute, sometimes the class is not specified. In this case, the class must be interpreted and is usually still clear. For example, laws prohibiting drunk driving are aimed at protecting the public at large. In the case of a building code, people who enter the building are intended to be protected under such laws.

An example where a person does not fall within the protected class is represented by a case in Minnesota, where the law required railroad companies to keep fences at road crossings. A drunk man who slept on the tracks crossing was hit by a train and injured severely. The court decided in this case that while not having erected a fence at the road crossing violated Minnesota law, the intent was to keep children, domestic animals, and livestock off the track. The man should have known better than to sleep on a rail bed without a fence, and subsequently did not fall under the class of persons protected by the statute.

Type of Injury That the Statute Intended to Protect

For a successful injury claim, you need to show that the law violated was designed to prevent the type of harm suffered. In one case, sheep were being transported on a ship. During a storm, the sheep were washed overboard. An existing statute had required the shipowner to install pens to contain the animals during the journey. The owner of the sheep brought a case against the shipowner, arguing that the sheep would have been safe had the pens been installed. The court considered that the purpose of the law was to prevent infection from spreading on the ship, rather than to prevent animals from drowning. In this case, because the harm suffered by the sheep owner was not the harm that the statute intended to prevent, it was not negligence per se.

Having a personal injury attorney with you will help you to navigate the legal processes of a negligence per se case, including negotiating a settlement or representing your case for you. Should your Las Vegas accident case go to trial, your attorney could help you gather evidence and present it in a convincing way to prove your case. This evidence includes the police report, documenting the scene of the accident, and any resulting charges. It also includes witness statements collected from people at the scene, and photographs or videos from the accident scene documented by you or witnesses. Evidence also includes your medical records and bills, detailing your injuries and costs associated with your injuries, and resulting care.

Exceptions to Negligence Per Se

When a person has violated a statute and would be considered negligent under the negligence per se doctrine, there are certain exceptions. These exceptions excuse his or her violation of the statute. This means that a defendant will not be considered negligent under the negligence per se doctrine if any of the following exceptions apply:

  • The person has some form of physical disability or incapacitation, making the violation reasonable.
  • The person exercised reasonable care in trying to comply, but was still unable to comply with the statute.
  • The person was unaware, nor could be aware of, circumstances which made the statute applicable.
  • The reason for violating the statute was that the way the requirements were presented was confusing.
  • Complying with the statute would result in a greater risk of harm to either the person or others.

The last exception listed occurs when complying with the law risks greater harm than not complying with the law. An example is when a person drives over the sidewalk, striking a pedestrian. Under normal circumstances, this would be negligence per se for violating laws prohibiting driving on sidewalks. However, if a child had run into the road, and the person mounted the sidewalk to avoid hitting the child, his or her conduct was reasonable to avoid causing harm to the child. In this case, the person would have acted reasonably in violating the statute to avoid greater harm, and the exception would likely apply.