The doctrine of negligence per se is a legal theory that holds a defendant accountable for damages if they violated legislation or regulation meant to safeguard the public’s safety and that breach resulted in harm to the plaintiff.
The concept presumes that the defendant was negligent merely by breaching the legislation or regulation without requiring particular actions of carelessness or recklessness to be shown.
What Is the Difference Between Negligence Per Se and Ordinary Negligence?
In the legal system, there are two types of negligence: negligence per se and ordinary negligence.
Negligence per se refers to a circumstance in which a defendant is presumed responsible for damages due to a breach of legislation or regulation meant to safeguard the public’s safety.
The plaintiff is not required to establish that the defendant was careless or reckless in this negligence. Instead, the plaintiff’s harm is believed to be the result of the defendant’s breach of the legislation or regulation, making it simpler for the plaintiff to win a case.
Ordinary negligence, on the other hand, refers to a circumstance in which the defendant’s acts or inactions are deemed careless or reckless and that carelessness or recklessness is directly responsible for the plaintiff’s harm. In these circumstances, the plaintiff must show that the defendant violated a duty of care and that the breach caused the plaintiff’s damage.
Both types of negligence vary from comparative/contributive negligence, which are legal concepts that consider the degree of responsibility of both the defendant and the plaintiff in a case. The amount of damages awarded to the plaintiff is decreased under these principles depending on the degree of guilt they bear in creating the harm.
What Are the Elements to Prove Negligence Per Se?
The following negligence per se elements must be proven to establish negligence per se:
- The defendant broke the law or regulation: The plaintiff must demonstrate that the defendant violated a law or regulation intended to safeguard the public’s safety. This may include, among other things, construction rules, traffic legislation, and health and safety standards.
- The purpose of the act or rule was to safeguard the public’s safety: To prove a negligence per se claim, the legislation or regulation must have been created to preserve the public’s safety.
- The plaintiff suffered harm due to the violation: The plaintiff must demonstrate that the defendant’s breach of the legislation or regulation directly caused them harm.
- The complainant belongs to the group of people that the legislation or rule was designed to protect: The act or rule must have been designed to safeguard the plaintiff’s class of persons.
If these components are shown, the defendant is deemed negligent, and the burden of evidence shifts to the defendant to prove that they were not negligent or that other factors caused the plaintiff’s damage.
Negligence in and of itself may make establishing negligence easier since it reduces the requirement for the plaintiff to demonstrate particular actions of carelessness or recklessness on the defendant’s side.
What Is an Example of Negligence Per Se?
Negligence per se examples include:
- A motorist who causes a vehicle accident while driving under the influence of alcohol breaching drunk driving rules.
- A property owner who fails to correct a potentially dangerous property situation breaks building laws and safety requirements.
- A producer that manufactures and sells a faulty product in violation of product safety rules.
- A doctor who fails to offer competent medical treatment to a patient in violation of medical licensure standards.
Are There Any Defenses to Negligence Per Se?
There are numerous defenses to negligence per se. Among the most prevalent defenses are the following:
- Statute of limitations: The statute of limitations states that negligence per se claims must be filed within a particular time. If the plaintiff does not file their claim within this time, the defendant may use the statute of limitations as a defense.
- Unforeseen circumstances: If the defendant can demonstrate that they could not have anticipated the damage that resulted from their acts, they may have a defense to negligence per se.
- Misapplication of the law: If the broken statute was applied incorrectly to the defendant’s position, the defendant might have a negligence per se defense. For example, if the defendant acted according to the directives of a government agency or professional organization when they did the offense under investigation, they may have a defense.
- Changed circumstances: If the circumstances that gave birth to the law violation changed after the violation occurred, the defendant might have a carelessness per se defense.
To prove negligence per se, the plaintiff must demonstrate that the defendant’s breach of the legislation caused the plaintiff’s injury. If the defendant can demonstrate that their breach of the legislation was not the cause of the plaintiff’s injury, they may have a carelessness per se defense.
It should be noted that the particular defenses available to a defendant in a negligence per se action will be determined by the facts and circumstances of the case and the laws of the jurisdiction in which the case is heard.
Can I Use an Affirmative Defense in a Negligence Per Se Case?
In a negligence per se lawsuit, a defendant may raise an affirmative defense. An affirmative defense is one that, if demonstrated, explains or justifies the defendant’s behavior even if the defendant is found to have violated legislation or rule.
The following are some typical affirmative defenses that may be raised in a negligence per se case:
- Necessity: If the defendant can demonstrate that they violated legislation or rule because they were confronted with impending injury or danger and had no other option, they may have a defense of necessity.
- Emergency: If the defendant can demonstrate that they violated legislation or regulation because they were reacting to an emergency and had no other choice, they may have an emergency defense.
- Contributory Negligence: If the plaintiff was also negligent in some manner and contributed to their own suffering, the defendant may be entitled to use contributory negligence as an affirmative defense.
- Assumption of Risk: If the plaintiff freely accepted the risk of injury from the defendant’s activities, the defendant may be entitled to use the affirmative defense of assumption of risk.
It is crucial to remember that the availability and application of affirmative defenses in a negligence per se case are determined by the laws of the jurisdiction in which the case is heard.
Should I Discuss Negligence Per Se Defenses with an Attorney?
Yes, if you have been engaged in a case involving carelessness, it is highly advised that you consult with a personal injury attorney about your case and viable defenses. An attorney can advise you on the laws and defenses that apply to your case and assist you in navigating the legal system and protecting your rights.
A personal injury lawyer will be aware of typical carelessness defenses and may advise you on the strengths and weaknesses of your case. They may also assist you with gathering evidence and developing a good defense, negotiating with the other party, and representing you in court if required.
Use LegalMatch today to find the right personal injury lawyer for your case. Don’t wait any longer to settle your legal issues.