Torts Quick Tip: Negligence per Se

Just about every law student should be familiar with the basic elements of negligence—that the actor owes a victim a duty to conform to a particular standard of care, breaches that duty, and so doing, actually and proximately causes the victim harm. The standard of care that normally applies is that of a reasonable person under the circumstances. But sometimes, the more specific requirements of a statute, regulation, ordinance, or other law will replace the general reasonable-person standard under the doctrine of negligence per se.

If negligence per se applies, and the actor violated the relevant law, then the victim will have established the elements of duty, standard of care, and breach. But to recover, the victim must additionally prove actual causation, proximate causation, and harm. Of course, negligence per se can be used to establish not only a prima facie case for negligence against an actor, but also contributory negligence or comparative fault against a victim whose injury owes to her own violation of some applicable law.

Several elements must be satisfied for negligence per se to apply. 

Ideally, the law should set forth a mandatory, specific command, as opposed to a generalized, abstract rule. Some jurisdictions will not apply negligence per se if the law merely sets forth some abstract rule (though there is authority to the contrary, as in the Restatement (Second) of Torts). For instance, a law against crossing a solid yellow line into the opposing lane of traffic is a mandatory, specific command. On the other hand, a regulation requiring a landlord to maintain safe, sanitary living quarters is arguably a generalized, abstract rule to which some jurisdictions would not apply negligence per se.

Many courts will apply negligence per se only if the law is penal—that is, if the law imposes some criminal penalty for its violation, be it outright imprisonment or a mere criminal fine. A civil penalty, such as license revocation or a civil fine, may not suffice.

For negligence per se to apply, the victim must be within the class of persons the law was meant to protect. Relatedly, the law must have been meant to prevent the type of accident that injured the victim. 

For instance, if a motorist negligently injures a pedestrian, and the motorist’s license plates are expired at the time, the motorist will not be held liable just because he violated some law requiring current license plates. Such a law is designed to raise licensing revenue and help identify cars and their owners, not to prevent injuries to pedestrians. On the other hand, if the motorist ran a stop sign and hit the pedestrian, negligence per se would likely apply. A law against running a stop sign is designed to prevent this precise sort of accident.

Even if the victim establishes the elements of negligence per se, the doctrine will not apply (and, thus, the general reasonable-person standard will control in the case) if one of several exceptions applies.

Courts will not apply negligence per se if complying with the law would have been, to the actor or others, more dangerous under the circumstances than breaking the law would have been. For instance, negligence per se might not apply if someone illegally crosses the street to get away from a vicious dog bearing down on her.

Negligence per se will not apply if, at the time of the accident, the actor could not reasonably have complied with the law because of some incapacity, such as an unforeseeable heart attack or seizure.

Negligence per se will not apply if, at the time of the accident, the actor neither knew nor should have known that the occasion demanded compliance with the law. For instance, suppose an accident occurred because a motorist’s brake lights were out. If no one informed the motorist that her brake lights were out, she would have had no reason to know that she needed to replace them. Hence, negligence per se likely would not apply.

Negligence per se will not apply if the actor faces an emergency that is not attributable to the actor’s own negligence or other misconduct. For example, a motorist’s vehicle may suffer sudden, unforeseeable mechanical failure, or a motorist may swerve to avoid a child who has suddenly darted out into the road.

Negligence per se will not apply if, at the time of the accident, the actor could not comply with the law despite her having made all reasonable efforts to do so. Conceptually, this exception is closely related to some of the others already discussed.

Suppose a state statute required railroad companies to keep tracks clear of ice and snow at all times. But one day, an extremely heavy blizzard covered all of a railroad company’s tracks with heaps of ice and snow. Despite making all reasonable efforts to clear the tracks, the company could not get the tracks cleared until 3 days after the blizzard. Here, if someone is injured on the second day due to the accumulated snow on the tracks, negligence per se likely will not apply to the railroad company. The company simply could not clear the tracks so quickly, despite reasonable efforts to do so.

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