What is negligence per se?
What are the negligence per se elements to prove in court?
How is this legal theory different from ordinary “negligence”?
In this article, we will break down the notion of “negligence per se” so you know all there is to know about it!
We will look at what is negligence per se, compare negligence per se vs negligence, compare res ipsa loquitur and negligence per se, look at the elements you need to prove in court, the standard of care, examples and more.
Be sure to read this entire article as we have loads of great content!
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What is negligence per se
Negligence per se or negligence “as a matter of law” (some say negligent per se or tort per se) is a key component of personal injury law and how a plaintiff can obtain compensatory damages or other damages from a person causing them damages.
“Negligence per se” is a fault concept (typically applied in personal injury cases) making it easier for the plaintiff to get compensation for damages suffered.
Negligence per se definition
Negligence per se means negligence in and of itself.
According to Cornell Law School’s Legal Information Institute, negligence per se is defined as:
Negligence per se means negligence in itself
What is notable with this definition is that negligence per se is a concept that says an act, in of itself, is negligent, regardless of the reasonableness or prudence of the defendant’s conduct.
Doctrine of negligence
In ordinary negligence cases, a plaintiff who has suffered personal injury must prove the negligent acts or conducts of the defendant.
To prove ordinary negligence, you’ll need to demonstrate that the defendant’s actions were below the standard of care.
Also, it must be proved that the defendant’s conduct was the actual and proximate cause of the injuries suffered.
A doctor owes his or her patients with the highest duty of care.
To prove the doctor acted in a negligent way causing the patient harm, you may need to bring expert witnesses, do investigations, bring eyewitness accounts and establish the standard a prudent doctor would have observed and how this doctor did not.
Proving ordinary negligence is not easy.
However, with the negligence per se doctrine, the law creates an ‘evidence’ shortcut whereby the plaintiff does not need to prove that the defendant’s conduct observed or not the standard of care.
Standard of care
The “standard of care” is to determine to what extent a reasonable person would have acted differently or would have been more prudent in the circumstances.
What would have a reasonable person done in the same circumstances?
Breaching the standard of care is doing something that a reasonably careful person would not have done in the same circumstances.
In an ordinary negligence case, the plaintiff must prove that the defendant did not exercise the standard of care a reasonable person would have exercised in the same circumstances.
In negligence per se cases, the prudence or reasonableness of the defendant’s actions does not matter.
Inference of negligence
In many jurisdictions, by the mere fact that a person violates a statute, regulation, law or ordinance, and another person is injured or is harmed, the person’s actions will be deemed to have been negligent.
In other words, an inference of negligence will be made.
When the law makes an inference of negligence, we say that there is “negligence per se”.
Mary was a passenger in John’s car.
Due to John’s reckless driving, they get into a car accident and Mary is severely injured.
Mary sues John for compensation.
To prove her negligence per se case, Mary does not need to prove how John failed at his duty of care towards her but rather how John violated the highway safety code and how the law was designed to protect her and avoid the type of injuries she suffered.
Strict liability concepts
The negligence per se theory follows the strict liability legal theory whereby a person is held liable for the consequences of certain actions, activity or conduct even in the absence of a provable fault.
Strict liability is particularly used in product liability cases or other dangerous activities.
The evidence presented in a negligence per se case is principally centred around the defendant’s violation of the law or statute.
By proving that the defendant violated the law, you no longer need to prove that the defendant failed in his or her duty of care towards you.
In negligence per se lawsuits, the evidence is centred around the violation of the law
The mere fact that the defendant violated the law is sufficient for the plaintiff to prove that the defendant’s actions breached the duty of care he or she owed the plaintiff.
Once the statutory violation is proved, the plaintiff will only have to prove that he or she was a member of the class of people the law was intending to protect and that he or she suffered damages the law was trying to avoid.
Negligence per se essentially eliminates the need to prove the “duty” and “breach” of such duty as you would need to prove in a negligence claim.
Elements of negligence per se
Statutory violation is central in negligence per se claims is to prove that the defendant violated the law.
The negligence per se doctrine makes it easier for the plaintiff to prove the defendant’s negligence in court.
There are four elements to prove to win a negligence per se action
The elements of negligence per se are:
When dealing with negligence per se, you no longer need to prove that the defendant’s conduct fell short of the applicable standard of care.
The defendant’s actions are assumed to fall short of the standard of care the moment the plaintiff proves that the conduct violated the statute, regulation or law.
In contrast with ordinary negligence, the plaintiff must prove the following elements:
Negligence vs negligence per se
What is the difference between negligence and negligence per se?
When dealing with a “negligence” matter, you must demonstrate that the actions of the defendant deviated from those of a prudent and reasonable person in the same circumstances causing damages.
To prove “negligence”, you must demonstrate four basic elements:
- The defendant owed a duty of care to the plaintiff
- The defendant breached the duty of care
- The breach of the duty of care caused harm to the plaintiff
- The damage results from or is proximately caused by the defendant’s conduct
For example, a driver owes pedestrians a duty of care when they are legally crossing the street.
A driver hitting a pedestrian will have failed to comply with his or her duty of care causing the pedestrian harm.
On the flip side, to prove negligence per se, you must prove four elements (but slightly different than for ordinary negligence):
- The defendant violated the law or statute
- The plaintiff is a member of the class the law or statute intended to protect
- The injuries suffered by the plaintiff is the type of injuries the law was trying to avoid
- The defendant’s violation of the law resulted in damages to the plaintiff
A contractor does not build a property in accordance with the code resulting in personal injury to the plaintiff following its collapse.
The building code establishes that a contract must observe all building safety standards.
If not, the contractor will be liable for the injuries caused no matter the standard of care he may have observed in the circumstances.
Negligence per se vs res ipsa loquitur
Res ipsa loquitur is a legal theory or doctrine in personal injury cases allowing a plaintiff to prove the defendant’s negligence using circumstantial evidence instead of the violation of the law.
Based on the res ipsa loquitur doctrine, a judge can infer that a defendant was negligent if the facts show that there was an accident and the defendant’s conduct represented the only logical explanation.
A car accident results in the death of all the passengers and no witnesses were present on the scene.
The evidence shows that the driver was typing a message on his cell phone and the message was unfinished.
The accident cannot be justified by other reasons like a mechanical defect or other drivers on the scene.
By invoking res ipsa loquitur, the estate of the passenger can prove the driver was negligent by sending a text message while driving resulting in the death of the passengers.
There is no other circumstantial evidence to explain the accident in any other way.
In contrast to res ipsa loquitur, when dealing with “negligence per se”, you must demonstrate that the defendant’s actions violated the law, you were a member or class of person the law was intending to protect and you suffered damages the law was trying to prevent.
Defenses to negligence per se
In the states that follow the negligence per se rules, the reasonableness of the defendant’s actions will not excuse the defendant from being held liable by the court for the injuries caused to the plaintiff.
Even if the defendant acted with the same standard of care as a reasonable person in the same circumstances, the law infers that the defendant’s conduct was in breach of the standard of care.
To defend against a negligence per se claim, the defendant will need to establish that:
- There was no violation of the law, statute or ordinance
- The plaintiff is not a protected class under the law
- The alleged conduct did not result in damages to the plaintiff
Restatement (Second) of Torts defenses
However, there are some possible defenses against negligence per se claims.
Under the Restatement (Second) of Torts, the following defenses can be raised against a plaintiff’s negligence per se allegations:
- The defendant had an incapacity or disability preventing him or her to act otherwise
- The defendant could not comply even by acting diligently
- The defendant tried to comply with the law and still failed
- There was an emergency
- Compliance with the law would have resulted in greater risk
- The defendant’s violation was reasonable in the circumstances
While John was driving, he witnessed a robbery.
As he was driving, he immediately calls the police to report the incident but gets into a car accident with Suzanne injuring her in the process.
Suzanne sues John for compensation.
John will defend himself by saying that he was reporting a crime to the police to comply with the law and to report the emergency.
The court may consider John’s arguments as a valid defense against the negligent per se action.
Some states apply variations of the negligence per se doctrine.
In some states, the negligence per se creates a rebuttable presumption of negligence.
The defendant will have the ability to overturn the presumption by demonstrating that his or her conduct was reasonable and passes the reasonableness test.
Negligence per se examples
What are some negligence per se examples to see how it works in action?
In areas where the safety and security of individuals are important, you’ll see the application of the per se negligence doctrine apply.
Many states adopt laws and regulations to protect the safety of employees at work and thus prevent workplace injury.
As a result, if an employee is injured on the job, the employer may be held liable for the damages regardless of how it exercised its duty of care towards the employee.
Let’s look at the elements to prove in a workplace injury case:
- The employer violated the workplace safety laws
- The employee is in a class of persons protected by law
- The employer’s breach of workplace safety laws caused injuries to the employee
- The employee suffered damages the law attempted to mitigate
In nearly all jurisdictions, highway safety laws and regulations are designed to protect the safety of children, pedestrians, passengers or others.
If a person violates the road safety laws, the court will assume that the defendant was negligent based on the fact that he or she breached the law.
The question is not whether the driver fell short of the duty of care but rather whether the violation of the law caused damages to the plaintiff.
The construction of a property, house, building or other structures is typically governed by building codes imposing legal obligations on the contractors to ensure the property is safe for its occupants.
In many cases, the violations of the building code or the safety requirements will lead to the application of negligence per se doctrine.
Negligence per se FAQ
What is a negligence per se example
Here is a negligence per se example:
Company ABC makes consumer-grade toasters.
Helen buys the toaster and due to a product defect, the toaster catches fire injuring Helen.
It appears that Company ABC failed at observing safety laws designed to prevent such injuries.
The doctrine of negligence per se will apply as the violation of the safety laws by Company ABC directly resulted in the damages to Helen who was a member of the protected class.
What is the difference between negligence and negligence per se
You can define negligence as:
- A person owing another a duty of care
- Where the behaviour or conduct of the person violates the duty of care
- The person’s breach of the duty of care causes an injury to another
- The damages suffered by the other was caused by or proximately caused by the person’s negligent conduct
You can define negligence per se as:
- An act, conduct or behaviour violating the law, statute, regulation or municipal ordinance
- Where the violation results in an injury to another
- Where the person suffering an injury was a member of the protected class
- The type of injury suffered was the type of injury the law was designed to prevent
What are the elements of negligence per se
To prove negligence per se, you must prove the following four elements:
- Defendant’s conduct violated the statute, regulation or law
- Plaintiff belongs to the class of persons the law intended to protect
- The violation of the law caused the injuries to the plaintiff the law was trying to prevent
- The damage results from the violation of the law
Is negligence per se a separate cause of action
A negligence per se can be brought as a standalone claim or “cause of action” in cases like personal injury lawsuits or can be brought as an argument within a standard negligence action.
An action for negligence and action for negligence per se are distinct types of claims
If negligence per se action is brought as a distinct cause of action, the central argument presented by the plaintiff is that the defendant violated the law causing damages.
In a standard negligence action, the central argument presented by the plaintiff is that the defendant failed at observing the standards of care applicable causing the alleged injuries.
What is the difference between negligence and negligence per se
The end result for both a negligence claim and a negligence per se claim is for the plaintiff to get compensation for injuries suffered to the actions of the defendant.
However, the legal path to get there is very different.
In a negligence case, the plaintiff has a much more difficult burden of proof whereas in a negligence per se action, the law makes it easier for the plaintiff to get compensation.
The negligence per se doctrine makes it easier for a plaintiff to get compensation
In an ordinary negligence action, the plaintiff must prove that the defendant’s actions deviated from what a reasonable and prudent person’s conduct in the same circumstances.
the plaintiff must demonstrate how a reasonable person would have acted in the circumstances and how the defendant failed to act as such.
On the other hand:
In a negligence per se action, the law presumes that if the defendant violated the law, it has breached the duty of care.
In essence, the plaintiff is exempt from proving the violation of the standard of care.
How do you defend against a negligence per se action
There are four prongs to the defense against a negligence per se action:
- The defendant did not violate the law, statute or municipal ordinance
- Even if the defendant violated the law, the violation did not result in injuries or damages to the plaintiff
- The plaintiff is not a member of the class protected by law
- The type of injuries suffered by the plaintiff is not what the law was intending to protect
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