Negligence Per Se

In ordinary negligence cases, a personal injury plaintiff must prove negligence. He or she will have to show that the defendant's conduct fell below the applicable standard of care and that these actions were the actual and proximate cause of his or her harm. A standard of care is the extent to which a reasonable person would have been prudent in the same set of circumstances that caused the injury. However, in many states, when a defendant violates a safety statute, regulation, or municipal ordinance, and someone else is hurt as a result, an inference of negligence is raised.

The doctrine that permits this inference is "negligence per se," and the doctrine can make it easier for the victim to recover damages. Its application varies from state to state. The key element of any traditional negligence per se action is that the jury no longer has to consider whether the defendant's actions were reasonable or not. The defendant's actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. The jury still will determine whether the conduct violated the statute and caused the accident, but the standard of care is assumed.

In most states that follow the doctrine of negligence per se, a plaintiff will usually have to establish that the defendant violated a regulation or law enacted for safety reasons, that the plaintiff belongs to the class that was intended to be protected by the safety regulation or law, and that the violation caused the injury to the plaintiff. The law must be intended to protect the class to which the plaintiff belongs, and it must be intended to guard against the particular type of harm suffered by the plaintiff. When a defendant has been convicted of a crime, such as a DUI, evidence of the conviction may be admissible, and it can make it easier to prove the first prong and apply negligence per se.

Limitations of Negligence Per Se

A safety statute or regulation applies only if it is intended to protect the class to which the plaintiff belongs and if it is intended to guard against the particular harm suffered by the plaintiff. For example, if a safety regulation related to electricity is intended to protect against the risk of workplace injury, but the plaintiff is an ordinary passerby, the regulation may not be the basis for a negligence per se action.

The mere reasonableness of a defendant's actions does not excuse him or her in a jurisdiction that follows traditional negligence per se rules. However, there are situations that can give rise to a defendant's legitimate excuse. Under Restatement (Second) of Torts, Section 288A, certain excuses are permitted for statutory violations even in states the generally follow negligence per se.

Legitimate excuses include when:

  • A defendant's incapacity made it reasonable for him to violate the statute;
  • A defendant neither knew nor should have known of the occasion for compliance;
  • A defendant was unable to comply even using reasonable diligence or care;
  • The defendant was confronted by an emergency that was not caused by his misconduct; or
  • Compliance would have involved a greater risk of harm to the defendant or others.

Variations on Negligence Per Se

A few states follow variations on negligence per se. In some states, for example, the violation of a safety statute creates a presumption of negligence. However, the defendant can rebut that presumption in order to escape liability. In other jurisdictions, the statutory violation is merely evidence of negligence. The violation neither creates a rebuttable presumption of negligence nor firmly establishes negligence. Moreover, unlike with traditional negligence per se, a defendant in those states has the opportunity to prove the reasonableness of his or her actions even though they did not meet the standards of the safety regulation or statute.