Negligence Per Se
Negligence per se is a shortcut.
7. Negligence Per Se
A violation of statute or ordinance establishes the duty and breach elements of negligence if the law was enacted for safety, the injured party belongs to the class of persons that the law was intended to protect, and the injury is of the type that the law was intended to prevent. RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 14 (2010).
- Ordinances and statutes can provide the basis for negligence per se.
- When established, negligence per se establishes both the duty and breach elements of negligence.
- Negligence per se is typically limited to safety statutes and ordinances.
- Regardless of the type of statute or ordinance, the injured party must belong to the class of persons that the law was intended to protect, and the injury must be the type that the law was intended to prevent.
- Negligence per se does not operate in reverse. In other words, a person who complied with a statute or ordinance may still be found to have breached the duty of care.
Negligence per se is a shortcut: a qualifying violation of a safety law hands the plaintiff the duty and breach elements. It requires a safety law, a plaintiff in the protected class, and the type of harm the law targets, and it never runs in reverse.
Negligence per se is a shortcut. Normally a plaintiff has to prove that the defendant owed a duty and then breached it by acting unreasonably. But when the defendant has broken a safety law, the plaintiff can borrow the legislature's judgment about what counts as reasonable. If the violation qualifies, the duty and breach elements are handed to the plaintiff: the defendant is treated as having breached as a matter of law, and the case moves straight to causation and damages.
- 1The law has to be a safety law. Negligence per se is typically limited to safety statutes and ordinances, and either a statute or a local ordinance can supply the standard.
- 2The injured plaintiff has to be inside the class of persons the law was meant to protect.
- 3The injury has to be the type of harm the law was meant to prevent.
Miss either the class filter or the harm-type filter and the violation does not establish negligence per se, even though the defendant clearly broke the law.
Negligence per se is a one-way street and does not run in reverse. A defendant who complied with the law is not automatically off the hook. Compliance is some evidence of reasonable care, but a jury can still find that following the statute was not enough and that the defendant breached the ordinary duty of care anyway.
Think of it as a borrowed standard with a gate.
The gate has three bars: safety law, protected class, protected harm.
Clear all three and the violation hands you duty and breach.
Memory line: class and harm, or no per se.
And remember the one-way street: violation can establish breach, but compliance never proves due care.
Per se runs forward, never in reverse.
A city ordinance requires gas stations to install automatic shutoff nozzles to prevent fuel from spilling and igniting. A station owner ignores the ordinance and uses old manual nozzles. A customer overfills her tank, gasoline spills across the pavement, and a spark ignites it, burning the customer.
Suppose the spilled gasoline never ignites, and instead the customer simply slips on the wet pavement and breaks her wrist.
An option lets the plaintiff win on the bare fact of a statutory violation, or treats protected-class membership alone as enough, skipping one of the gating filters.
A violation establishes per se only if it is a safety law, the plaintiff is in the protected class, AND the harm is the type the law was meant to prevent. All filters must clear.An option treats the defendant's compliance with a statute as conclusive proof of due care, or says per se runs in both directions.
Negligence per se does not run in reverse. Compliance is relevant evidence but never conclusive; a complying defendant can still be found to have breached the ordinary duty of care.An absolute option says negligence per se applies only to criminal statutes, never to ordinances or pollution statutes, or that ANY statutory violation establishes negligence.
The doctrine rests on safety statutes and ordinances generally and is gated by the class and harm filters, so no unqualified 'only criminal' or 'any violation' rule holds.An option reaches the right outcome but reasons that the qualifying violation wins the entire case by itself.
Per se supplies only duty and breach; the plaintiff must still prove causation and damages, so the violation does not by itself decide the whole claim.The stem hands you a defendant who broke, or complied with, a statute or ordinance, and the call asks whether that fact decides duty or breach.
That is the per se cue.
The instant you see a statute being violated, run the three filters in order: is it a safety law, is this plaintiff in the protected class, and is this the type of harm the law targets.
If a filter fails, there is no per se and the plaintiff falls back to ordinary negligence.
If the stem instead stresses that the defendant followed the law, watch for the reverse trap: compliance is evidence of care but never conclusive, so a breach finding is still possible.
A state safety statute requires highway construction zones to place reflective barriers between live traffic lanes and open trenches so that passing motorists are not steered into the trenches. A contractor working a night shift left a stretch of trench with no barriers at all. A motorist driving through the work zone drifted into the unmarked trench and was injured. He sued the contractor on a theory of negligence per se.
Does the statutory violation establish the duty and breach elements of the motorist's claim?
A city ordinance requires apartment buildings to keep exterior stairwell lights working so that tenants can see the steps and avoid falling on the stairs at night. A landlord let the stairwell lights burn out and never replaced them. One night an intruder, hidden by the darkness of the unlit stairwell, attacked and injured a tenant on the stairs. The tenant sued the landlord on a theory of negligence per se.
Is the tenant likely to establish duty and breach through negligence per se?
A railroad operated a grade crossing and installed exactly the warning signals that a state safety statute required at that type of crossing. Because the crossing sat on a sharp curve with limited sight lines, the required signals gave drivers very little time to stop, and a driver who could not stop in time was struck and injured. The driver sued the railroad, which argued that because it provided every signal the statute required, it could not be found to have breached the duty of care.
Does the railroad's compliance with the statute establish that it did not breach the duty of care?
A statute enacted to protect swimmers requires public pool operators to keep a lifeguard on duty whenever a pool is open. An operator opened the pool with no lifeguard present, in violation of the statute. A swimmer began to drown while no lifeguard was watching and suffered serious injury before another patron pulled her out. She sued the operator on a theory of negligence per se, and it was undisputed that she was a swimmer the statute was meant to protect and that drowning was the harm the statute was meant to prevent.
What does the operator's qualifying statutory violation establish?
A statute requires factories that emit a particular pollutant to install filters in order to protect nearby residents from breathing contaminated air. A factory failed to install the required filters. A worker inside the factory, who was exposed to far higher concentrations of the pollutant than any resident, developed a respiratory illness and sued the factory on a theory of negligence per se.
Is the worker likely to establish duty and breach through negligence per se?
A city ordinance requires businesses that sell prepared food to display their tax registration number in a visible place, a rule adopted purely to help the city collect sales tax. A cafe failed to post its registration number. A customer who ate at the cafe was injured when a poorly secured ceiling fixture fell on her, and she sued the cafe on a theory of negligence per se based on the posting violation.
Is the customer likely to establish duty and breach through negligence per se?