Negligence per se, often referred to as “statutory negligence,” sets the conduct prescribed by a statute, ordinance or regulation as the standard of care. Under the negligence per se doctrine, a person’s violation of a statute or ordinance establishes that person’s negligence.1
The negligence per se doctrine relieves the plaintiff of the responsibility of proving the duty and breach elements of the negligence case. Instead of the plaintiff proving duty and breach, the doctrine deems negligence to have been proven by virtue of the end product of the defendant’s conduct (i.e., a statutory or regulatory violation), regardless of the reasonableness of the defendant’s conduct.2
Elements of Negligence Per Se
In most jurisdictions, the plaintiff must prove the following in order for the negligence per se doctrine to apply to his/her case:
- The defendant violated a statute or regulation;
- The violation caused the plaintiff’s injury;
- The injury resulted from the kind of occurrence the statute or regulation was designed to prevent; and
- The plaintiff was a member of the class of persons the statute or regulation was intended to protect.
Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. App. 2003):
The negligence per se doctrine enables the courts to mold standards of conduct in penal statutes into rules of civil liability. The process has been analogized to “judicial legislation,”and its governing principles and their application vary considerably from jurisdiction to jurisdiction. Still, a consensus exists regarding many of the doctrine’s basic precepts.
The negligence per se doctrine does not create a new cause of action. Rather, it is a form of ordinary negligence, that enables the courts to use a penal statute to define a reasonably prudent person’s standard of care. Negligence per se arises when a legislative body pronounces in a penal statute what the conduct of a reasonable person must be whether or not the common law would require similar conduct.
The negligence per se doctrine is not a magic transformational formula that automatically creates a private negligence cause of action for the violation of every statute. Not every statutory violation amounts to negligence per se. To trigger the doctrine, the statute must establish a specific standard of conduct. Many states require the statutory standard of conduct to differ from the ordinary prudent person standard of conduct. Invoking the negligence per se doctrine is unnecessary and redundant if the statute requires only the ordinary reasonable person standard of conduct.
The effect of declaring conduct negligent per se is to render the conduct negligent as a matter of law. Thus, a person whose conduct is negligent per se cannot escape liability by attempting to prove that he or she acted reasonably under the circumstances. However, a finding of negligence per se is not equivalent to a finding of liability per se. Plaintiffs in negligence per se cases must still establish causation in fact, legal cause, and damages.
The fact that the General Assembly has enacted a statute defining criminal conduct does not necessarily mean that the courts must adopt it as a standard of civil liability. Decisions regarding the proper civil standard of conduct rest with the courts. Thus, the courts must ultimately decide whether they will adopt a statutory standard to define the standard of conduct of reasonable persons in specific circumstances.
The courts consider a number of factors to determine whether the violation of a statute should trigger the negligence per se doctrine. The two threshold questions in every negligence per se case are whether the plaintiff belongs to the class of persons the statute was designed to protect and whether the plaintiff’s injury is of the type that the statute was designed to prevent. Affirmative answers to these questions do not end the inquiry. Courts also consider (1) whether the statute is the sole source of the defendant’s duty to the plaintiff, (2) whether the statute clearly defines the prohibited or required conduct, (3) whether the statute would impose liability without fault, (4) whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation, and (5) whether the plaintiff’s injury is a direct or indirect result of the violation of the statute.
Bauman v. Crafford, 104 Wash. 2d 241 (1985):
A primary rationale for the negligence per se doctrine is that the Legislature has determined the standard of conduct expected of an ordinary, reasonable person; if one violates a statute, he is no longer a reasonably prudent person. Negligence per se exists when a statute or ordinance is violated, and that law is designed to (a) protect a class of persons which includes the person whose interest is invaded, (b) protect the particular interest which is invaded, (c) protect against the kind of harm which resulted, and (d) protect that interest against the particular hazard from which the harm results.
A majority of courts in states which apply the negligence per se doctrine to adults have recognized a fundamental conflict between that doctrine and the special child’s standard of care. Scholarly commentary also overwhelmingly supports the view that negligence per se is inapplicable to children.
The majority rule is based upon the policy considerations underlying each doctrine. These courts and commentators recognize that application of negligence per se to children abrogates the special standard of care for children; such abrogation violates the public policy inherent in the special child’s standard. These courts and commentators also recognize that refusal to consider a child’s minority in effect substitutes a standard of strict liability for the criterion of the reasonable child.
Conversely, the minority of courts willing to impose negligence per se on children do so, for the most part, without discussion of the policy considerations underlying the two doctrines at issue here. Often, a mechanistic statutory construction is applied to foreclose any consideration of the child’s maturity level, experience, age, or intelligence. These courts reason that if the legislature did not specifically exclude children from the requirements of the statute, then all persons, including children, are required to behave in accordance with that statute
Similarly, the Court of Appeals in the present case was persuaded that the Washington Legislature intended that children be held negligent per se for violation of the statute involved in this case. In 1965 the Legislature repealed RCW 46.47.090 which specifically stated that no child under 16 shall be held to be negligent per se for any violation of the statute. The Court of Appeals interprets this deletion from the statute as proof that the Legislature intends that negligence per se be applied whenever the statute is violated by a child. That court relies on the rule that a material change in a statute indicates a change in legislative intent for that interpretation.
The legislative history of the repealed provision is unavailable, so it is impossible to ascertain the actual legislative intent. It is significant, however, that the entire motor vehicle code was being revised at the time this provision was repealed. Thus, the Legislature did not single out this statute for special treatment, but merely changed it as part of an overall revamping of the code.
Furthermore, negligence per se and the child’s standard of care are both court-created doctrines. Accordingly, we presume the Legislature, by its change, intended to return to the courts the decision whether to apply negligence per se to minors under 16 years of age.
A significant number of the courts which decline to apply negligence per se to minors have determined that violation of a statute by a minor may be introduced as evidence of negligence, as long as the jury is clearly instructed that the minor’s behavior is ultimately to be judged by the special child’s standard of care.
1. In a few jurisdictions, such as California, the violation of a statute, ordinance or regulation does not establish tort liability as a matter of law, but rather creates a rebuttable evidentiary presumption of negligence. In California, for instance, that presumption of negligence may be rebutted with proof that: “(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or (2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.” Cal. Evid. Code § 669(b).
2. As a practical matter, the plaintiff likely would not rely solely upon alleged statutory or regulatory violations to prove negligence at trial. The plaintiff instead will usually try to prove that the defendant was negligent not only because it violated applicable law but also because of its unreasonable conduct.