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Negligence Per Se Laws

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What is “Negligence per se”?

“Negligence per se” is a category of offenses involving the violation of a statute that is designed to protect the public from a specific type of harm. Usually, negligence is based on the breach of a duty of care which causes harm to the plaintiff. The standards for the duty of care are typically determined by a jury under normal negligence rules. 

However, with negligence per se, the main basis for liability is the violation of the statute. That is, the standard of care is set by the statute rather than a “reasonable person” standard or professional standard. Also, an act may fall under negligence per se when a person acts or omits to do something that is so far beyond reasonable standards that it is inherently negligent.  

What are the Elements to Prove Negligence per se?

In order 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

Alternatively, some acts are considered to be negligent in themselves, and do not require proof that the negligence was intentional. For instance, if a doctor fails to remove a sponge from a patient’s body, it would be inherently negligent under per se laws. 

What is an Example of Negligence per se?

An example of negligence per se is when a contractor violates a building safety code when constructing a home. Suppose that the safety code requires certain reinforcements to be placed in the supporting beams of the house, but the contractor failed to do install them. If the house collapses and injures someone, the violation of the building code constitutes negligence per se. The contractor will be held liable if it can be proven that the violation was the actual and proximate cause of the injury.

However, assume that in the above example a person was injured due to toxic contaminants in the house. Here, the contractor would not be held liable under negligence per se rules, since the safety code was intended to protect against collapses, not toxic contamination. This is what is meant the requirement that the defendant’s acts must cause the “type of harm” that the statute is “intended to prevent”.

Are there any Defenses to Negligence per se?

It can often be very difficult to prove a defense to negligence per se, since violations are based on statutes rather than a reasonable person standard. In this sense, negligence per se laws can be somewhat similar to strict liability laws.
 
However, it may be a defense to negligence per se if the defendant can prove:
 
  • It would be more dangerous to comply with the statute rather than violate it, or
  • Complying with the statute is impossible

In addition, the defendant can sometimes limit or prevent recovery based on comparative/contributive negligence rules. These can be raised if the plaintiff’s actions have caused or contributed to their own injury. 

Do I need a Personal Injury Lawyer for Negligence Per Se disputes?

If you have been injured according to negligence per se rules, you should contact an attorney immediately. You may be able to recover losses for your injuries under a negligence per se theory. Or, if you are being accused of a negligence per se violation, a personal injury lawyer can determine whether a defense is available for your claim.
 
Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 04-23-2018 08:07 PM PDT

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