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?
- 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?
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 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.