What is Negligence Per Se?
What is the difference with the standard negligence doctrine?
What are the essential elements you should know!
In this article, we will break down the legal definition of Negligence Per Se so you know all there is to know about it!
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Negligence Per Se Overview
Negligence per se (or negligence as a matter of law) is a form of strict liability whereby an act or conduct is qualified as negligence by law.
In essence, if a person is found to have violated the law (statute or regulation), he or she will automatically be considered liable.
The party breaching the statute will be presumed negligent.
It’s like saying that a person is automatically considered “at fault” for having caused damages by engaging in conduct or activity prohibited by law.
We see protective statutes, laws, regulations, ordinances, or other legislation such as building codes, traffic laws, consumer laws, federal laws, environmental laws, or other intended to protect the public and create the concept of legally “presumed negligence”.
In a negligence per se lawsuit, the plaintiff will need to demonstrate that the defendant violated the law, the law was looking to prevent the defendant’s act, the plaintiff is a type of person the law was looking to protect, damages were suffered, and caused by the act.
Based on the “negligence per se” doctrine, the law makes it easier for the plaintiff to recover damages as it infers the defendant’s negligence.
There is a presumption of negligence in favor of the plaintiff.
This has an important legal consequence in a personal injury lawsuit.
In essence, the plaintiff does not need to prove that the defendant’s actions were unreasonable or the defendant was not prudent in the circumstances.
Instead, the defendant’s actions are considered automatically to be “unreasonable” or “negligent”.
What’s left to prove is whether the defendant’s conduct violated the law and the plaintiff was a protected class.
How do you define negligence per se?
According to Cornell Law School’s Legal Information Institute, negligence per se means:
Means negligence in itself.
In other words, the negligence per se doctrine indicates that the act “in itself” is considered or deemed as negligent.
What are the elements of negligence per se?
To prove a negligence per se case, you need to prove the following elements:
- The defendant breached the law or violated the applicable statute
- The defendant’s act or conduct was the type of conduct the law was looking to prohibit or avoid
- The plaintiff is a member of the class protected by law
- The plaintiff suffered damages
The first element to prove is that the defendant violated the law.
That should be a rather simple legal task.
Let’s take the example of a person violating traffic laws in a school zone.
We must prove that a person exceeded the speed limit in the school zone.
The next step is to demonstrate the intent of the law.
Negligence per se laws are generally clear in scope and are drafted to protect the public against certain activities, events, actions, or conduct.
If the law is designed to protect children from injuries caused by drivers exceeding the speed limit, we’ll need to prove this intention.
In our example of negligence per se, we’ll need to say that the law was designed to protect pedestrian children.
The last step is to show that the child who was injured was a member of the protected class.
What are the limitations of negligence per se doctrine?
Negligence “per se” is like saying that by merely committing the “act”, you are liable for possible damages.
It’s important to consider the objective of the “law” and the targeted “act”.
If the law is designed to protect employees from a specific type of workplace injury, a plaintiff will be able to successfully prosecute a negligence per se action provided that the plaintiff was a protected class (employee) and the injury was the specific type of workplace injury targeted by the act.
Otherwise, the plaintiff will not be successful in holding the defendant liable.
What can you do to defend yourself against a negligence per se lawsuit?
Here are some of the typical defenses that may be seen raised by the defendant:
- The statute invoked by the plaintiff does not apply
- The defendant’s act or wrongdoing is not an act triggering the application of the statute
- The plaintiff is not a member of the class protected by law
- Even if the statute applies and the plaintiff is a protected member, there were no damages suffered
- The defendant’s act does not actually cause the damages or there is no proximate cause
In certain jurisdictions and cases, the presumption of negligence may be rebutted.
In essence, the law may create a rebuttable presumption of negligence that the defendant may reverse.
Also, under the Restatement (Second) of Torts, Section 288A provides further excuses or legal defense arguments, such as:
- The defendant had an incapacity rendering him or her unable to comply with the law
- The defendant was unaware that he or she needed to comply with the statute
- The defendant couldn’t comply with the law even if acting reasonably
- There was an emergency
- Complying with the law would have resulted in greater harm to others
Negligence vs Negligence Per Se
What is the difference between negligence per se vs negligence?
The negligence per se and pure negligence are both designed to compensate the victim of wrongdoing but they achieve their objective in different ways.
In a standard doctrine of negligence, the plaintiff must demonstrate that the defendant owed a duty of care, breached the duty, the plaintiff suffered damages, and the breach of the duty caused the damages.
In essence, the plaintiff must demonstrate that the defendant failed at respecting the standard of care in the circumstances causing damages (actual or proximate cause).
On the other hand, to establish that someone was negligent per se, we do not have to prove the duty of care or the breach of the duty.
Instead, we need to prove that there is a law or statute specifically intended to create liability for certain types of actions, the action committed by the defendant was precisely what the law was targeting, the plaintiff was a member of the class the law intended to protect, and suffered damages.
What are some negligence per se examples?
Example 1: Building Code
The most common example of negligence per se is with respect to building a property or home.
In essence, the builder or contractor has a duty to build the property in accordance with the building code.
If the property violates the code, collapses, and injures someone, the builder will be held liable based on the application of the law.
In this context, the law will consider the builder as negligent and allow the injured party to seek compensation.
Example 2: Traffic Code
Another typical example where we have per se negligence is when a person violates the traffic laws or traffic code.
Imagine a person exceeds the speed limit in a school zone.
The law may consider the driver at fault if the person speeds above the limit and injures a child in a school zone.
Another traffic law liability may be triggered the moment someone has blood alcohol above a certain threshold.
Example 3: Medical Malpractice
A third example of negligence per se would be in a medical malpractice case.
Imagine a physician violates the Emergency Medical Treatment and Active Labor Act by failing to provide emergency care to a person who was targeted by the statute.
In this case, the doctor will be held liable in a negligence per se lawsuit for medical malpractice.
Negligence Per Se Takeaways
So what is the legal definition of Negligence Per Se?
Let’s look at a summary of our findings.
Negligence Per Se.
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