Negligence

Negligence per se

Law holds us liable for both our intentional and negligent acts. Because intentional acts tend to be very obvious, most legal cases are more concerned with negligence. I’ve discussed it before on here, but negligence happens when a person fails to exercise “reasonable care.” But, deciding this happens after the fact and usually requires a jury. One exception to that is negligence per se.

Negligence per se translates to negligence in itself. Basically, some acts are so obviously problematic that it doesn’t matter whether or not they’re done with reasonable care. If something is negligence per se, the person who commits that act is liable for the reasonably foreseeable consequences of that action. No matter how careful they were. Basically, this refers to the violation of a statute. Specifically, this refers to the violation of a statute intended to protect the plaintiff that injures the plaintiff.

A plaintiff must establish five elements to bring a negligence per se claim: (1) that the defendant violated a particular statute; (2) that the statute was enacted to protect a specific class of persons; (3) that the plaintiff is a member of the class; (4) that the plaintiff’s injury is the kind of injury that the statute was enacted to prevent; and (5) that the statute was intended to regulated members of the defendant’s class.

If the plaintiff proves these elements, a defendant is negligent as a matter of law. But that’s just the first step. The plaintiff must still succeed in proving causation and damages to establish liability. If a plaintiff fails to do that, his claim fails as a matter of law. The defendant’s actions must have caused the alleged damages. Similarly, a claim fails as a matter of law if the plaintiff fails to establish the material elements of the claim, including damages.

What does all that mean? Basically that negligence law continues to apply. The four common elements of damages are duty, breach, causation, damages. Instead of a traditional duty analysis, we have the five factor test discussed above. But that’s only the first step – and the remaining three steps continue to apply. Because it short-circuits the duty requirement, negligence per se can be a powerful claim. But, it’s important to remember that it carries its own set of requirements and shouldn’t be reduced to just “breaking a law.”