Osborne v. McMasters

41 N.W. 543 (Minn. 1889).

One-Sentence Takeaway:  In a common law claim for negligence, the doctrine of negligence per se substitutes the statutory standard for the standard of ordinary care, and replaces evaluation of breach of ordinary care with determination of violation of the statute.

Summary:  In violation of a criminal statute intended to protect the public safety, a clerk in Defendant’s drugstore sold to Plaintiff’s decedent a bottle of poison without labeling it as “poison.”

Plaintiff argued for liability based on the criminal statute claiming that Defendant’s failure to affix a poison label to the bottle containing the poison caused the death of the decedent. The Minnesota Supreme Court agreed and affirmed the judgment in favor of Plaintiff, reasoning that the statute created a duty and Defendant’s failure to conform to its commands constituted negligence per se.

Importantly, while Plaintiff’s claim was not a statutory one, but one sounding in common law negligence, the court nevertheless looked to the statute to fix the content of the standard of care.  The court explained:

The common law gives a right of action to every one sustaining injuries caused proximately by the negligence of another. The present is a common-law action, the gist of which is defendant’s negligence, resulting in the death of plaintiff’s intestate. Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense, except that it makes an act negligent which otherwise might not be such, or at least only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined.

Id. at 543-44.

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