Negligence Per Se

Proof of duty, as required to support a claim of negligence, may be established by:

  • Common law
  • Legislative enactment
  • Particular facts and circumstances of the case (in the absence of legislative enactment or judicial decision)

The Nuance of Negligence Per Se

Not every violation of a provision of law or ordinance constitutes negligence per se. If a legislative enactment commands or prohibits the doing of a specific act, a violation generally will constitute negligence per se. However, where a legislative enactment for the public safety sets forth a rule of conduct in general and abstract terms, liability will be determined by the due care test. The application of this revolves around how a reasonably prudent person would have managed under the same circumstances.

Negligence per se has no application where the duties are so vague that determination of reasonableness is up to jury ascertainment. This nuance sometimes gets lost in the heat of argumentation. Negligence must be found by the jury from the facts, conditions, and circumstances disclosed by the evidence. Negligence per se is a violation of a specific requirement of law or ordinance.

Negligence Per Se and Comparative Negligence

Even if there is a finding of negligence per se, a defendant may still show comparative negligence – by demonstrating that the plaintiff’s negligence was the cause of the plaintiff’s injuries.

Application of negligence per se in a tort action means that the plaintiff has conclusively established that the defendant breached the duty that he or she owed to the plaintiff. But there is no an automatic finding of liability per se. The plaintiff will still have to prove proximate cause and damages.