Negligence per se is a violation of a public duty enacted by law. The statute was enacted to protect a particular class of people from a specific type of harm or injury. General negligence requires the plaintiff to prove the defendant was at fault for the injury. According to negligence per se, the burden of proving negligence is not required. Instead, 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 because it is based on a violation of law, not reasonable person standard. There are a number of defenses 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 cases, a defendant can use an affirmative defense, such as:
- Comparative Negligence: This defense is used to show the plaintiff was at fault for a percentage of the action. A defendant claims he violated the statute, but the plaintiff shares some blame for the accident. If the defense is successful, the plaintiff’s award will be reduced by the percentage that they are liable for. For example, the plaintiff may 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 their own accident. A defendant will admit that they violated the statute, but the plaintiff’s actions contributed in causing their own injury. If the defense is successful, the plaintiff is barred from recovering any damages.
Should I Discuss Negligence Per Se Defenses with an Attorney?
Yes, a personal injury attorney can explain the defenses available for you to use. They can also defend you in a negligence per se lawsuit.