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Negligence Per Se

Negligence per say is a theory of fault that may be relevant in a personal injury case. Negligence per say occurs when the defendant has violated a law through their negligent behavior. In an ordinary negligence case, the plaintiff must prove the defendant’s negligence by showing that they did not exercise reasonable care and that the defendant’s conduct was the actual and proximate cause of the plaintiff’s harm. However, if the defendant violated a safety law and injures the plaintiff in doing so, the plaintiff is entitled to an inference of negligence under the doctrine of negligence per se. For example, a plaintiff may bring a negligence per se claim if the defendant violates the speed limit and injures the plaintiff. Or, a plaintiff may sue a property owner for negligence per se if they have violated the city’s building codes and the plaintiff is injured as a result. 

An inference of negligence makes it easier for the plaintiff to recover damages because the jury does not have to decide whether the defendant’s conduct was reasonable. The defendant’s actions are assumed to be unreasonable if he or she has violated an applicable law. The jury will instead decide whether the defendant violated the law in question and whether the defendant caused the plaintiff’s injury. In other words, negligence per se eliminates the “duty” and “breach” elements of a negligence cause of action. 

What Must a Plaintiff Prove in a Negligence Per Se Case?

Typically, a plaintiff alleging negligence per se must prove that the defendant violated a safety law, that the plaintiff belongs to the class of persons that the law was enacted to protect, and that the harm the plaintiff suffered was the kind the law was intended to prevent. The plaintiff must also prove that they were harmed by the defendant’s violation. The plaintiff does not have to prove that the defendant’s actions were unreasonable, however, because the reasonableness of the defendant’s actions do not relieve him or her of liability under the doctrine of negligence per se. 

A Defendant’s Legitimate Excuse for Violating the Law

There are a few situations that constitute a legitimate excuse for a defendant to have violated a law and therefore do not give rise to a presumption of negligence under negligence per se. These include: 

  • The defendant neither knew nor should have known of the law
  • The defendant could not comply with the law even by exercising reasonable care
  • The defendant was in an emergency situation that was not caused by their own misconduct
  • Complying with the law would have resulted in greater harm to the defendant or others

Negligence Per Se Variations

Depending on the state, the presumption created by negligence per say may vary. In some states, a defendant’s violation of a law creates a presumption of negligence, which the defendant may rebut to avoid liability. In other states, a defendant’s violation of a law is only evidence of negligence and does not give rise to a presumption of negligence. In these states, the defendant is given the chance to prove that their actions were nonetheless reasonable even though they violated the law in question. You should check the law of your state to determine the effect negligence per se has there. 

Contact a personal injury lawyer, like a lawyer from Eglet Adams, for their insight on negligence per se.