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Torts • Negligence
TORT#028
Legal Definition
Negligence per se exists where duty and breach are conclusively presumed. To establish it, the plaintiff must show that: (1) there is a criminal statute or ordinance; (2) the plaintiff is a member of the class of persons protected by the statute; and (3) the claimed harm is the type of harm the statute or ordinance is protecting against.
Plain English Explanation
One of the most difficult parts of proving negligence is establishing that the defendant had a duty, and that the defendant breached that duty. Negligence per se is a shortcut where duty and breach are presumed so long as the defendant's actions align with an existing law or rule.
In other words, imagine that you were blowing bubbles on your front lawn. One of your bubbles travels down the street and pops in the eye of your neighbor, causing an infection. The neighbor tries to sue you. Since you didn't intentionally try to blow a bubble in your neighbor's eye, their only hope is to argue that you were negligent. How could they succeed?
It would be nearly impossible for them to argue that you had either a duty to not blow bubbles on your lawn, or not allow those bubbles to escape your property line, or even a special duty to care for the health of your neighbor's eyes. Without such a duty, there can be no breach of duty.
However, imagine that there so-happens to be a statute in your jurisdiction that says "people may not blow bubbles outside of their homes." Now, there's no need for the neighbor to try to construct an argument that you had a duty, because the statute establishes one.
Once the neighbor identifies a valid statute, they need only show two more things: (1) that they are the intended victim that the statute wanted to protect, and (2) the type of harm they experienced is the type of harm the statute tried to avoid. For example, if the statute was created to protect people from getting eye injuries from bubbles, then negligence per se is established, and two elements of negligence are presumed (duty and breach). However, if the statute was passed to prevent injury to birds and insects, or to prevent people from dripping slippery bubble soap outside their house (which may increase the risk of slips and falls), then the neighbor with the eye injury will fail to establish these two requirements.
In other words, imagine that you were blowing bubbles on your front lawn. One of your bubbles travels down the street and pops in the eye of your neighbor, causing an infection. The neighbor tries to sue you. Since you didn't intentionally try to blow a bubble in your neighbor's eye, their only hope is to argue that you were negligent. How could they succeed?
It would be nearly impossible for them to argue that you had either a duty to not blow bubbles on your lawn, or not allow those bubbles to escape your property line, or even a special duty to care for the health of your neighbor's eyes. Without such a duty, there can be no breach of duty.
However, imagine that there so-happens to be a statute in your jurisdiction that says "people may not blow bubbles outside of their homes." Now, there's no need for the neighbor to try to construct an argument that you had a duty, because the statute establishes one.
Once the neighbor identifies a valid statute, they need only show two more things: (1) that they are the intended victim that the statute wanted to protect, and (2) the type of harm they experienced is the type of harm the statute tried to avoid. For example, if the statute was created to protect people from getting eye injuries from bubbles, then negligence per se is established, and two elements of negligence are presumed (duty and breach). However, if the statute was passed to prevent injury to birds and insects, or to prevent people from dripping slippery bubble soap outside their house (which may increase the risk of slips and falls), then the neighbor with the eye injury will fail to establish these two requirements.
