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Negligence Per Se
What is Negligence Per Se?
If you violate a law or ordinance and injure someone, you are presumed to have acted negligently. Personal injury lawsuits use this theory. The doctrine is the same in general, but the application varies quite a bit among states.
The presumption of negligence per se is rebuttable. A defendant has an opportunity to counter or challenge it once a plaintiff establishes it. The defendant has several options for doing so. A defendant may be able to prove that his/her actions were reasonable under the circumstances.
Further, a defendant may object to an allegation of negligence per se. In general, the following defenses can be made: defendant did not violate a statute, ordinance, or rule, plaintiff was not in a class to which the statute applied, and defendant's violation did not cause plaintiff's injury.
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Another theory used in personal injury cases to prove negligence is res ipsa loquitor. Unlike per se negligence, however, the doctrine uses circumstantial evidence to establish negligence. California applies the negligence per se theory. Evidence Code 669 is the California statute that outlines the doctrine.
Legal Definition Of Negligence Per Se
In personal injury cases, negligence per se refers to the idea that a person is presumed to have acted negligently if he or she injured someone while violating a law. A personal injury claimant must prove the following to receive damages: the defendant acted with negligence, and this negligence was a substantial factor in causing the plaintiff's harm.
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An ordinary negligence case occurs when a defendant: fails to do something that a reasonable person would do in the same circumstance, or does something that a reasonable person wouldn't do under the circumstances.
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A theory of negligence that makes it easier for a victim to provide a negligence cause of action and recover damages is negligence per se (or negligence "as a matter of law"). As soon as a defendant violates a statute, his or her actions are presumed to be unreasonable. Car accidents are typical examples of these types of cases.
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When a defendant violates a statute, ordinance, or regulation, that violation causes death or injury to a person or property, the death or injury is the type of injury that the statute was designed to prevent, and a defendant is a person the statute was intended to protect, the defendant is presumed negligent by the law.
Presumption Of Negligence Rebutted
A presumption of negligence is rebuttable. Defendants have the right to contest it. The burden of proof shifts to the defendant when a plaintiff establishes negligence as a matter of law. If the defendant is not negligent, the burden of proof shifts to the defendant. This can be done by offering evidence that: the defendant's violation of the law was reasonable under the circumstances, the violation was reasonable given the defendant's age or disability, the defendant used reasonable care in trying to comply with the law, compliance with the law would have involved a greater risk of harm than noncompliance, and the defendant faced an emergency that wasn't connected with his/her own conduct.
Defenses In Negligence Per Se Cases
Defendants can also challenge these allegations using a defense in addition to rebutting a per se negligence presumption. Attorneys for the defense use a variety of legal strategies to defend against these allegations. These include showing that: the defendant did not violate a statute, law, or ordinance. Plaintiffs in the case were not protected by the law. There were no injuries caused by the defendant's violations.
No Violation Of A Statute
A person may only be liable for negligence if they violated a law. Defendants always have the right to demonstrate that they did not break any laws. Remember that this theory only works if the plaintiff belongs to a protected class of people. Hence, proving that the plaintiff does not belong to this protected class is a defense.
The Defendant’s Violation Did Not Cause An Injury
Negligence per se claims can only be successful if the plaintiff has actually been injured. Defendants must show that, even if they violated the law, their actions did not harm the plaintiff as a result.
A violation can also serve as a defense if it was not a substantial factor in causing the plaintiff's harm.
Negligence Per Se V. Res Ipsa Loquitor
The doctrine of res ipsa loquitor is used in personal injury cases to prove negligence.
Unlike other theories, however, this one uses circumstantial evidence to prove negligence instead of violating a law. Judges or juries may infer negligence when: facts demonstrate that an accident occurred, and there is no reasonable explanation for it other than the defendant's actions.
California Law
The traditional doctrine of negligence per se is applied in California law. This doctrine presumes negligence when someone violates a statute and injures someone as a result.
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According to the Evidence Code 669, the same four-part test described above (in section 1) applies to these cases to establish negligence per se.
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The defendant can also prove a presumption wrong by demonstrating to the trier of fact (the court) that: he/she acted in accordance with what a reasonable person would do under similar circumstances; or he/she acted the same way as a child would have under similar circumstances.