Negligence Per Se Defenses

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 What Are the Elements to Prove Negligence per se?

To prove negligence per se, the plaintiff must prove that:

  • The defendant violated a statute
  • The statute in question is a safety statute
  • The defendant’s acts caused the type of harm that the statute was intended to prevent
  • The plaintiff was a member of the class that the statute protected

Some acts are considered negligent in themselves and do not require proof that the negligence was intentional. The failure of a doctor to remove a sponge from a patient’s body would be considered inherently negligent under a per se law.

What Is an Example of Negligence Per Se?

An example of negligence per se is when a contractor violates a safety code when building a home. The safety code requires certain reinforcements to be installed in the supporting beams of the house, but the contractor failed to do so. If the house collapses and injures someone, the violation of the building code constitutes negligence by itself. If it can be proven that the violation was the cause of the injury, then the contractor will be held liable.

Imagine, however, that in the example above, a person was injured by toxic contaminants in the house. In this case, the contractor would not be liable under negligence per se rules since the safety code was intended to protect against collapse, not toxic contamination. Accordingly, the defendant must cause the “type of harm” that the statute is “intended to prevent” by their acts.

Negligence Per Se Defenses

Negligence per se is a violation of a public duty enacted by law. A specific type of harm or injury was intended to be protected by the statute. General negligence requires the plaintiff to prove the defendant was at fault for the injury. According to negligence per se, the burden of proof is not required. Rather, the plaintiff must prove:

  • The defendant violated a regulation or statute enacted by a jurisdiction
  • The statute or regulation was created to protect a class of people from a specific harm
  • The plaintiff was in the class protected by the law
  • The defendant’s actions caused the injury or harm the statute or regulation was trying to prevent

Are There Any Defenses to Negligence Per Se?

Negligence per se is similar to strict liability personal injury cases in that it stems from a violation of the law, not a reasonable person standard. Several defenses are available in a negligence per se lawsuit, including:

  • Complying with the regulation or statute would have been impossible
  • Complying with the statute or regulation would have been more dangerous than violating it

Can I Use an Affirmative Defense in a Negligence Per Se Case?

Yes, in some negligence per se defenses, a defendant can use an affirmative defense, such as:

  • Comparative Negligence: This defense shows the plaintiff was at fault for a percentage of the action. Although the defendant claims he violated the statute, the plaintiff bears some blame for the accident. If the defense is successful, the plaintiff’s award will be reduced by the percentage they are responsible for. The plaintiff might receive only 40 percent instead of 100 percent if they were 60 percent at fault for the accident.
  • Contributory Negligence: This defense shows that the plaintiff contributed to the accident. A defendant will admit they violated the statute, but the plaintiff’s actions contributed to their injury. Plaintiffs are barred from recovering damages if the defense is successful.

Limitations of Negligence Per Se

It applies only if it is intended to protect the plaintiff’s class and if it is intended to guard against the particular harm suffered by the plaintiff. Similarly, if a safety regulation related to electrical wiring is intended to protect against the risk of workplace injury, but the plaintiff is a passerby, the directive may not be the basis for a negligence per se claim.

If the defendants’ actions had been reasonable, they would not be excused in a jurisdiction that uses traditional negligence per se rules. However, some situations can justify a defendant’s excuse. Under the Restatement (Second) of Torts, Section 288A, certain excuses may be permitted for statutory violations even in states that adhere to negligence per se.

Legitimate excuses include when:

  • A defendant’s incapacity made it reasonable to violate the law;
  • The defendant was not aware of the occasion for compliance;
  • Even with reasonable diligence or care, the defendant was unable to comply;
  • The defendant faced an emergency that was not caused by their misconduct; or
  • Compliance would have resulted in a greater risk of harm to the defendant or others.

Variations on Negligence Per Se

Several states follow variations on negligence per se. For example, in some states, violating a safety statute creates a presumption of negligence. Nevertheless, the defendant can rebut that presumption to escape liability. Statutory violations are merely evidence of negligence in some jurisdictions. It neither establishes negligence nor creates a rebuttable presumption of negligence.

In addition, unlike traditional negligence per se, a defendant in those states has the opportunity to prove that their actions were reasonable even if they fell short of the safety regulation or statute.

Contributory Negligence

An injury can be caused by both the plaintiff and the defendant. In a car accident between car A and B, for example, car A’s driver was speeding, and car B’s driver was driving drunk. In other words, both drivers created risks by their negligence. The plaintiff’s negligence is called contributory negligence.

Comparative Negligence

Only a few states use the traditional harsh form of contributory negligence. Many states have abandoned it in favor of a fairer approach called comparative negligence. Recoveries are apportioned based on the degree of fault of both parties in comparative negligence cases. Through comparative negligence, a plaintiff can recover some damages for their injuries.

Due to comparative negligence, the defendant cannot be completely absolved of responsibility simply because the plaintiff also failed to exercise due care. In the United States, comparative negligence takes two forms. The first is pure comparative negligence. The concept of partial comparative negligence (also known as modified comparative fault) is used in other states.

Assumption of Risk

The assumption of risk is the third primary negligence defense. It is said that a plaintiff “assumes the risk” of injury if they enter a dangerous situation knowing full well the risks involved. This defense holds that a plaintiff who voluntarily consents to an activity cannot sue later if harmed. Voluntary means that the person taking the risk chooses to do so. Unless the person had the option to avoid the dangerous activity, they could not assume the risk.

Assuming the risk voluntarily can either be expressed or implied. Consent may be expressed verbally, in writing, or in any other way. The plaintiff’s knowledge of the risk and subsequent behavior can imply consent. Implied consent is most often associated with sports. A person participating in a sporting activity consents to the possibility of injury foreseeably associated with that sport. When a race car driver races, they implicitly assume the risk of serious injury or death from a crash.

Should I Discuss Negligence Per Se Defenses with an Attorney?

A personal injury attorney can explain the defenses available for you to use. They can also defend you in a negligence per se lawsuit. Use LegalMatch to find the right personal injury lawyer in your area.

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