In negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages. Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence…. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behavior standards that it is negligent on its face.”[1]
Some examples of negligence per se would be speeding or a doctor leaving a sponge inside their patient during operation. Speeding is against public policy and is negligent because there is a public duty to abide by the traffic rules. Leaving a sponge inside of someone is inherently dangerous and therefore the duty is presumed.
Negligence per se does not require a plaintiff to prove that a reasonable person would not have acted in that manner, it is just assumed to be unreasonable. This sounds at first like an easy standard. The case usually revolves around whether their negligence proximately caused the damage to the plaintiff. Although this is the basis question one must answer in a negligence per se case, it is not the only.
In proving a negligence per se case, one must first ask the threshold questions of “whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff’s injury is of the type that the statute was designed to prevent.”[2] For example, if an 18-wheeler is pulled off of the shoulder and isn’t pulled off enough for the traffic to move by, he is already breaking a law. The law that 18 wheelers must pull off of the road a certain amount of feet is most likely designed to decrease the risk of and protect other drivers and passengers from collisions with the vehicle. If you, another passenger on the road, are driving and are in a collision with the truck because it was too far into the highway, that is most likely the class that the law was meant to protect as well as the type of injury that they were trying to prevent. If you are late to work because the truck did not move off of the road correctly and caused a back up, although you are another passenger (correct class) the law was not designed to protect you getting to work on time and it would not be found as negligence per se.
Just because there is not negligence per se, however, doesn’t mean that the defendant can’t be found liable for negligence. There will just be a requirement that the plaintiff prove that the defendant owed the plaintiff a duty. Just because people break a law and you are hurt because of it, doesn’t mean that they cannot raise affirmative defenses. If you were being negligent too, the defense of contributory negligence may be raised.[3]
Written by:
Lyndsey Mott
Approved by Francisco Guerra IV
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, TX 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
[1] http://definitions.uslegal.com/n/negligence-per-se/
[2] Perry v. S.N., 973 S.W.2d 301, 306 (Tex. 1998)
[3] http://definitions.uslegal.com/n/negligence-per-se/
