What Is Negligence Per Se?
In a typical personal injury case, the plaintiff must prove that the defendant acted in a negligent manner, and that said negligence was the actual proximate cause or his or her injury. To prove negligence, the plaintiff must further demonstrate that the defendant’s actions fell below the applicable standard of care. This may involve calling upon an expert who can agree with or oppose the assertion that the defendant acted with the same prudence that any other person in a similar situation would have done. This whole process can be time-consuming and difficult, and it may not end in the defendant’s favor. In some cases, however, the law provides a legal shortcut for victims of personal injury and makes it easier for them to recover. This shortcut is known as “negligence per se.”
The Basis of Negligence Per Se
Negligence per se refers to the legal doctrine that defines an act as being undisputedly negligent if said act violates public law or policy. In cases in which this doctrine applies, the plaintiff need not prove the traditional elements of a personal injury claim. This includes elements such as duty and breach of duty. In other words, the plaintiff does not have to show that the defendant acted carelessly. Merely violating the law is grounds enough to establish this element.
A personal injury lawyer may evoke negligence per se in several situations. For example, a person sustained injuries in a car accident that was the direct result of the defendant violating a driving law. Negligence per se would apply. A violation of the law can be something as simple as rolling through a stop sign. Or it can be something more egregious, such as driving under the influence.
In a product liability case, negligence per se may apply if a child injures him or herself with a toy and if said toy does not meet all applicable mandatory standards, labeling and certification requirements. In jurisdictions with dog leash laws, the doctrine may apply if an unleashed dog bites someone while out in public. An experienced personal injury attorney knows when negligence per se applies and will evoke it to obtain monetary recovery as quickly and efficiently as possible.
Limitations of the Negligence Per Se Doctrine
The law may be cut and dry, and violations are often clear. But negligence per se is not an entirely undisputable presumption. The doctrine only applies to injured individuals who fall within a certain protected class. For instance, if a safety regulation protects workers against workplace injuries, but the plaintiff is a customer, he or she may not be able to evoke negligence per se. Moreover, there are defenses that the defendant can use to rebut a per se claim. Those defenses are as follows:
- The defendant did not know, nor should he or she have had reason to know, of the occasion for compliance.
- The violation was reasonable due to incapacitation.
- Even through reasonable care and diligence, it would have been impossible for the defendant to comply.
- The defendant was in the midst of a crisis that was not a result of his or her misconduct.
- Compliance with the law would have resulted in greater harm to the plaintiff, defendant or others.
A skilled attorney can help an injured party build a counter defense to these claims and prove that negligence per se actually occurred.
Proving Negligence Per Se
To prove negligence per se, a plaintiff must establish three things. Those are as follows:
- The defendant broke a law.
- The law was in place to prevent the injury that the plaintiff sustained.
- The plaintiff falls within the class of people that the law was designed to protect.
Proving a Violation of the Law
Proving that the defendant violated a law is possibly the easiest element to prove in a negligence per se personal injury claim. If a police report reveals that the defendant’s BAC was .10 at the scene of the car accident, or if an OSHA citation shows that a business was cited for failing to maintain a safe environment, then a defendant may have a difficult, if not impossible, time disproving this element.
Establishing the Law’s Intent
Most laws that provide for a negligence per se claim are to protect certain individuals from specific harm. For instance, toy certifications are to prevent children from sustaining injuries while using the toy. They are not to prevent injury to parents. The intent of each law is typically clear and explicitly stated within the law itself.
Establishing Oneself as Part of a Protected Class
In most cases, laws that allow for negligence per se are to protect the general public. However, some regulations are in place to protect very specific people. For example, many OSHA regulations are in place to protect workers in certain industries. The Emergency Medical Treatment and Active Labor Act is designed to keep ER physicians from denying a person emergency medical care due to an inability to pay or lack of insurance. Before evoking negligence per se, browse the law the defendant violated to ensure it is designed to protect you specifically.
Variations of Negligence Per Se From State to State
While most states follow traditional negligence per se laws, some have established variations of the law. For example, in some states a violation of the law creates the presumption of negligence. However, the defendant is able to rebut this presumption and, therefore, escape liability. Other states view a legal violation as evidence of negligent conduct. However, it neither confirms nor creates a rebuttable presumption for it. Unlike in states that have traditional negligence per se laws, defendants in these states have the chance to show that their actions were reasonable even though they violated a state or federal law or regulation.
Contact a Personal Injury Lawyer With Experience in Negligence Per Se
Negligence per se may seem like a cut-and-dry legal concept. But there is more to it than proving a defendant violated a law and that said violation caused your injury. To ensure the best possible outcome, work with a lawyer who is familiar with local, state and federal laws and regulations, and who has a firm grasp of the negligence per se concept. Submit a request online or call us today at (866) 345-6784 to get in touch with an attorney in your area!