Negligence per se is the legal principle that the violation of a statute, regulation, or ordinance is deemed negligent without proof of its unreasonableness. Or, to put it more simply, it’s a shortcut for making the case for damages against someone who caused a personal injury to someone else. The law treats the violation of certain statutes, regulations, or ordinances as obviously harmful that they automatically qualify as negligence.
Below we take a deeper dive into the concept of negligence per se—why it exists, examples of it, and the role a skilled attorney can play in leveraging it to get you the money you need to pay your bills and meet your needs after an accidental injury.
Background on Negligence Generally
The starting point for any discussion of negligence per se is the concept of negligence generally. “Negligence” is the legal term used to describe unreasonably dangerous, but not intentionally harmful, decisions or actions that hurt someone else.
Non-lawyers might use the words mistake, error, or mess-up to capture the idea of negligence—it’s wrongful conduct that the person who does it should pay for, even though the person didn’t mean to hurt the victim of it.
Most personal injury cases involve negligence. That’s because most accidents result from poor decisions or careless actions rather than an intent to do harm. For example, car crashes nearly always happen because drivers make mistakes behind the wheel, not because they intentionally ram another vehicle.
And most slips and falls occur because someone forgot to take a reasonable safety measure like mopping a wet floor or nailing down a loose carpet, and not because they pushed the victim down a flight of stairs.
For that reason, to secure compensation for the victim of an accidental injury, the victim’s lawyer usually needs to be able to prove that negligence occurred.
And that typically involves gathering and presenting evidence to establish four core facts:
- That the party at fault owed the victim a duty of care not to put the victim in harm’s way unreasonably;
- That the party at fault breached that duty of care through unreasonably dangerous decisions, actions, or inaction;
- That the breach caused a victim’s physical, emotional, or financial injury; and
- That the injury resulted in the victim suffering provable damages.
These facts constitute the basic building blocks of the vast majority of personal injury cases. The success of a personal injury claim will often depend on the volume and strength of evidence available to prove them and on the lawyer’s ability to assemble that evidence into a persuasive argument that can be presented to an insurance company, judge, or jury.
How Negligence Per Se Works and Why We Have It
Proving the four elements of negligence takes time and effort. And the first two elements—duty and breach—can be especially tricky because they’re subjective. What does it mean that one person owes another a duty of care when they’re total strangers to each other (as is usually the case)? And how do we distinguish between reasonable conduct that doesn’t breach that duty and unreasonable action that does?
To answer these questions, lawyers often need to delve deep into background facts and witness recollections. They might have found a way to show, for example, that an at-fault party should have foreseen how his actions could harm the victim. Or how both parties’ choices stacked up against what society recognizes as reasonable under the circumstances. These can be challenging concepts to tackle in any setting, let alone in a courtroom trial.
Negligence per se, eliminates the need to do that work. Its idea is that when a legislative body has written a law intended to protect people like the victim from injury, violating that law is by definition wrong and harmful, so there’s no need to put the victim and lawyer to the trouble of proving that the at-fault party shouldn’t have done what he or she did.
So long as the evidence demonstrates that the violation happened, that’s enough to establish the first two elements of a case for negligence—duty and breach. To make their case, lawyer and victim then need only prove that the violation caused an injury and resulted in damages.
In other words, treating statutory violations as negligence per se shortcuts the process of proving a negligence-based personal injury case. It saves time and resources for victims, lawyers, judges, and juries. And in cases where it’s applicable, it substantially increases the odds of victims achieving a favorable outcome for their claims.
Limitations of Negligence Per Se
Because negligence per se is such a powerful tool, the law generally limits its use to violations that meet two criteria:
- The statute, regulation, or ordinance violated must generally be “designed to protect against type of accident the actor’s conduct causes”; and
- The victim must be “within the class of persons the statute is designed to protect.”
Here’s an explanation of what that means in practice. Suppose your town has an ordinance that bans setting off fireworks during periods of drought. If your neighbor violates that law and, as a result, the firework embers trigger a brush fire that burns down your house and injures you, that’s generally considered negligence per se. The ordinance exists to prevent wildfires, and as a local homeowner, you’re within the class of people who the law aims to protect.
Now let’s change the facts. Suppose that your neighbor violates the law by shooting off a firework, but that it doesn’t ignite and instead falls from the sky back onto a paved city street. Hours later, it explodes when a car drives over it, injuring the driver.
In that scenario, the initial violation of the ordinance might not qualify as negligence per se because the ordinance wasn’t aimed at preventing the potential harm that could result from a car running over a dud firework. To be sure, your neighbor’s actions still might amount to negligence.
But the law doesn’t automatically assume so. The driver’s lawyer would instead have to prove your neighbor owed a duty of care to the driver and that your neighbor breached that duty by lighting off the firework.
But don’t let the seemingly straightforward nature of the examples above fool you. Courts constantly wrestle with how and when to limit negligence per se when the proliferation of laws nationwide makes it increasingly likely that someone can commit an unknowing violation while going about their everyday life.
Some commentators have even called for abandoning the doctrine altogether (though others take the opposite view). Still, for now, negligence per se continues to represent an important implement in a lawyer’s toolkit to ensure that personal injury victims receive compensation for the harm others do to them.
Common Applications of Negligence Per Se
Despite the complications that can arise, negligence per se does have some applications that courts and lawyers readily accept as appropriate. As lawyers for victims of personal injuries, we generally expect negligence per se to apply in the following types of cases.
Drunk Driving Accidents
Violating drunk driving laws and causing an accident is perhaps the most frequent and clear example of negligence per se in American life. Every driver knows the dangers and potential consequences of driving drunk.
It would make no sense to require drunk driving accident victims and their lawyers to prove that a driver shouldn’t have gotten behind the wheel after drinking and that it was an unacceptable risk to do so. Courts routinely allow drunk driving accident victims to invoke negligence per se in proving their cases against at-fault drivers.
Slip and Falls Due to Building Code Violations
Building codes exist to protect the public from the known risks of shoddy and unsafe workmanship. Lawyers for fall victims can often successfully argue that a building code violation constituted negligence per se when the hazardous property condition it created directly led to a fall.
For example, building codes routinely require that stairs be of uniform height to protect people from losing their balance. If you fell and suffered injuries on stairs that had uneven heights in violation of a local building code, chances are a court would treat that violation as negligence per se.
Nursing Home Abuse and Neglect
Most nursing homes operate according to strict statutes and regulations. Many of the rules with which they must comply exist to protect the vulnerable residents in their care from abuse and neglect.
For instance, federal regulations generally require nursing care facilities to maintain sufficient staffing to meet their residents’ nursing needs. If your loved one suffered injuries or health complications in a nursing facility because there simply wasn’t enough staff to ensure residents’ safety and well-being, that may constitute negligence per se that facilitates proving a claim for damages.
Fatigued Truck Driver Crashes
Driver fatigue is a well-known problem in the long-haul trucking industry. Truckers drive long hours on tight schedules. As a group, they’re older and suffer from worse health than the general working population, which amplifies the likelihood that they will get tired behind the wheel.
Extensive hours of service regulations exist to curtail dangerous fatigue among truckers by limiting the number of hours and days they may spend driving without a break. If a drowsy trucker causes a crash while in violation of those rules, chances are a lawyer for crash victims can point to the violation as negligence per se.
How to Know if You Are a Victim of Negligence Per Se
For obvious reasons, it’s helpful for your lawyer to be able to rely on negligence per se to prove your claim for personal injury damages. But it’s not always easy to tell if the injuries you suffered in a preventable accident or incident stem from negligence per se.
The most surefire way to find out if the doctrine can apply to your potential claim for compensation is to speak with an experienced personal injury lawyer as soon as possible after getting hurt.
Until then, these circumstances might also signify that the party at fault for your injuries committed a statutory violation that qualifies as negligence per se:
- The police report for the car accident that injured you shows that the police issued a citation for a moving violation to the other driver;
- A party involved accident that injured you has been arrested in connection with it;
- An at-fault party’s liability insurer has offered you a settlement without waiting for you to file a claim;
- A restaurant where you got food poisoning gets shut down for a health code violation;
- Medicare.gov or equivalent state websites report deficiencies or violations by a health care provider you suspect of malpractice;
- Your local building code enforcement officer has cited the owner of the building where you fell and got hurt;
These are just a few examples. Negligence per se can arise in countless contexts, which is why it’s best to speak with an attorney as soon as you can. And remember, even if negligence per se doesn’t apply to your case, you can still receive substantial compensation for your losses.
Negligence per se is a convenient shortcut, but by no means is it a requirement for getting the money you need to pay your expenses and rebuild your life. A skilled personal injury lawyer knows how to handle your case without or without the expedient of negligence per se.
Contact a Personal Injury Attorney Today
As the victim of an accidental injury, you likely have the right to claim compensation from the parties at fault and their insurers. Upon investigating your claim, an attorney might conclude that the doctrine of negligence per se applies to your case. But regardless of that determination, an experienced lawyer can take the necessary steps to protect your rights and advocate for full compensation.
Just don’t wait. You may have limited time to take legal action before your rights expire. To learn more about your options and whether negligence per se may apply to your claim, contact a skilled personal injury attorney in your area today for a free consultation.