Frequently Asked Questions - What is The Difference Between Negligence And Negligence Per Se?
Negligence is most commonly defined as the failure to exercise that degree of care toward others which a reasonable or prudent person would do in similar or like circumstances, or taking action which such a reasonable person would not. This definition is often further simplified to be “the failure to use due care.” In most civil cases for negligence, the plaintiff must prove that following four elements to successfully prevail: 1) The defendant owed the plaintiff a duty 2) the defendant breached that duty 3) the breach of this duty was a proximate cause of the plaintiff’s injuries and 4) the plaintiff suffered damages as a result.
The most common types of negligence claims involve motor vehicle crashes, slips and falls, and other types of personal injury accident claims. While we can usually use our common sense to determine whether someone acted negligently, courts and juries are routinely called upon to settle these negligence disputes on a case by case basis. Juries must consider the unique facts of each case in the quest to determine where the defendant failed to use due care.
Certain types of conduct, however, are so inherently dangerous that they are considered “Negligence Per Se.” Under the doctrine of negligence per se, the conduct in question is automatically considered to be negligent, and the focus of the case usually shifts to the issues of proximate cause and damages. To prove negligence per se, the plaintiff must prove the following: 1) the defendant violated a statute 2) the statute in question is a safety statute and 3) the defendants acts caused the type of harm that the statute was intended to prevent.
The most common example of negligence per se relates to DUI or speeding. If a plaintiff can successfully prove that the defendant was driving under the influence or speeding in violation of statutes, the court should instruct the jury that the defendant’s conduct is in and of itself evidence of negligence. In most of these instances, the court would find as a matter of law that the defendant was negligent per se. The jury or “finder of fact” would still have an opportunity to evaluate evidence from both parties regarding the issues of causation and damages. The issues for the juries consideration might then proceed to the questions of whether the defendant’s conduct caused the plaintiff’s injuries and whether the plaintiff sustained damages. The DUI defendant in a civil case could still present evidence that the plaintiff’s injuries were pre-existing, chronic, degenerative, or otherwise unrelated to the crash. A jury could ( and often does) conclude that the defendant was negligent, but that the defendant’s negligence was not a proximate cause of the plaintiff’s injuries. Juries also have the right to find that plaintiffs did not suffer the damages as alleged.
Another example that helps illustrate the doctrine of negligence per se has to do with violations of building codes. Building codes are codified in state and federal statutes to help ensure that buildings are constructed safely so that people and property are not unnecessarily put in harm’s way. These building codes are crucial to maintaining the structural integrity of the homes and building we sue every day. More importantly, however, the codes protect all of us from serious injury and even death that can occur when contractors put profits over safety. These building statutes are carefully drafted to protect against fires, collapses, and other structural failures. If we did not have statutes ensuring safe construction along with the important work of building inspectors to ensure that these statutes are followed, people and communities would run the risk of shoddy, dangerous construction leaving people vulnerable to all types of horrific accidents and injuries.
If an unsuspecting homeowner or member of the public is injured due to a building collapse, faulty electrical wiring, failure to install smoke detectors, improperly installed sprinklers, etc., personal injury attorneys will often hire experts to study the construction to determine whether anything violated building codes and statutes. In many instances, experts discover that the work did not meet the required building codes. In these instances, the responsible contract is legally presumed to have been negligent based on these violations. If the violation of this statute resulted in the dangerous condition that ultimately inj8ured a person, then the builder or other contractor can be legally deemed negligent per se. The injured plaintiff would only need to prove that the contract violated a building code or statute, that the statute was a safety statute intended to protect people, and that the defendants actions caused the type of injury or other harm to the plaintiff that the statute was intended to prevent.
Another example of negligence per se relates to statutes requiring dog owners to keep their dogs on a leash when outside in the public. The obvious purpose of these statutes is to protect people from possible attacks by uncontrolled dogs. If a dog owner allows a dog in the public without a leash and that dogs bites someone, the dog owner will likely be found negligent per se.
People bringing legal claims pursuant to either general negligence or negligence per se doctrines must prove their case by a preponderance of the evidence. Preponderance of the evidence means “the greater weight of the evidence.” The standard of proof is significantly lower than that required in a criminal trial, which requires proof beyond a reasonable doubt. If a plaintiff can prove the elements of either a general negligence cause of action or a negligence per se cause of action by the greater weight of the evidence, the plaintiff should prevail. In other words, if a jury believes the defendant’s conduct “more likely than not” or “by the greater weight of the evidence” was unreasonable and caused the injuries, he or she should prevail.
If you have questions about whether you have a potential negligence or negligence per se claim, please call the experienced personal injury trial attorneys at Trial Pro at 1-800-Trial-Pro to discuss your claim in more detail.