What Is The Difference Between Negligence Per Se in Torts?

Negligence per se is a doctrine where a defendant's violation of a statute establishes a presumption of negligence. It differs from general negligence, which requires proof of breach of the standard of care rather than direct statutory violation.

Negligence per se arises when a party breaches a statute or regulation that is designed to protect a specific class of individuals from harm. In such cases, the violation itself serves as evidence of negligence, eliminating the need for the plaintiff to demonstrate the standard of care normally required in negligence claims. The rationale for this doctrine is that when the law has set a specific standard of conduct, fulfilling that standard is necessary for societal safety and welfare.

In contrast, ordinary negligence claims hinge on the general standard of care that a reasonable person would exercise under similar circumstances. Here, the plaintiff must establish that the defendant failed to act with reasonable care, which is assessed based on the actions (or lack thereof) of a reasonable person, not through a statutory benchmark. Thus, negligence per se inherently simplifies the plaintiff's burden in establishing liability.

Both forms of negligence share essential elements, including duty, breach, causation, and damages. However, in negligence per se, the breach is effectively established by the violation of the law itself. The court then examines whether the plaintiff belongs to the protected class intended by the statute and whether the harm suffered was of the kind that the statute aimed to prevent.

The applicability of negligence per se can be illustrated through statutes aimed at preventing drunk driving. If a driver causes an accident while violating a DUI law, that violation can be treated as negligence per se, establishing a presumption of negligence without further debate over the ‘reasonable person’ standard. This direct linkage emphasizes the importance of the statutory framework in determining liability in tort law.

• 1Martin v. Herzog (1920) - this case established the application of negligence per se in torts by determining that violating a statute intended to protect a specific class leads to automatic negligence.
• 2Corcoran v. McGowan (1938) - reinforced the idea that violation of a safety statute, such as speed limits, can lead to negligence per se if the plaintiff is within the protected class.
• 3Robinson v. Lindsay (1979) - addressed the question of whether negligence per se applies in cases where a statute's violation was not the proximate cause of the plaintiff's injury.
• 4Smith v. McGlothlin (1996) - explored how the negligence per se doctrine applies in regulatory contexts and the necessity of harm within the risks the statute aims to mitigate.

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