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- The “negligence-per-se” doctrine provides that in certain situations a criminal statute (or
- administrative regulation or municipal ordinance) may be used to set the standard of care
- in a negligence case.
- These statutes make no mention of civil liability but, rather, impose
- fines or even imprisonment as punishment for those violating their dictates. Where
- appropriate, a specific legislative standard replaces the more general reasonable person standard.
Factors Used for Determining the Propriety of Adopting a Statute As the Standard of Care
To decide whether a statute should be adopted as the standard of care in a negligence
- case, a judge must determine that the statute provides the sort of specific guidance that
- justifies its use by a civil court. Further, a judge must examine the statute in order to
- determine whether the statute was designed to protect against the type of harm suffered
- by the plaintiff and whether the class of persons designed to be protected by the statute
- includes the plaintiff.
Type of Harm
It is easy to determine the type of harm against which a statute was designed to protect when the statutory purpose can be discerned readily from the language of the statute or from its clear legislative history. Often the statutory purpose is not readily discernible from the statute's language or legislative history, however. Here judges have great discretion.
Plaintiff in Protected Class
- Sometimes it is easy for a judge to determine the class of persons a statute was designed
- to protect, as where legislation is passed to promote worker safety. Sometimes, however,
- the scope of the protected class is uncertain.
Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care.
Effects of Non-Adoption and of Adoption of Statute
- The judge's determination that the proffered statute should not be adopted as the standard
- of care does not foreclose P's recovery for negligence. The case proceeds under the usual
- “reasonably prudent person” standard of care.
- In most jurisdictions, the statute replaces the usual “reasonably prudent person” standard
- of care. To determine breach, all the jury needs to find is that the statute was violated.
- The plaintiff does not automatically recover upon a finding of breach of the statutory
- standard of care because the plaintiff must still establish the other elements of a
- negligence cause of action. A minority of jurisdictions do not follow the negligence-per se
- approach. In these jurisdictions, the standard of care remains that of a reasonably
- prudent person and the relevant statute is simply admitted for the jury's consideration in
- determining whether D exercised reasonable care.
The Role of Excuse
- Modern courts have recognized excused statutory violations. Acceptable excuses include:
- a sudden emergency not of the actor's making; compliance would involve greater danger
- than violation; the actor neither knows nor should know of the occasion for diligence; the
- actor has some incapacity rendering the violation reasonable; or, after reasonable efforts
- to comply, the party is unable to do so. In most states, a judge makes an initial
- determination that the proffered excuse is appropriate and the jury considers its
- application. If there is an excused violation, the statute no longer affects the outcome.
Negligence Per Se and Children
- Most jurisdictions have concluded that the child standard of care should apply even
- where the child has violated a statute. Rather than using the statute as the standard of
- care, the standard is that of a reasonable child of the same age, maturity, intelligence and
- experience. The statutory violation may be relevant to breach of duty.
Compliance with Statute
The well-settled rule is that compliance with a statute is merely relevant evidence of reasonableness. Compliance does not establish due care.
Criticisms of the Negligence Per Se Doctrine
- Although the negligence-per-se doctrine has been widely accepted, there has been some
- judicial and scholarly criticism of the doctrine. One key criticism arises from the widely
- divergent impact the violation of a criminal statute has in a criminal prosecution from that
- in a tort case.
- Additionally, the negligence-per-se doctrine greatly constricts the jury's
- traditional role of determining breach and often invests the trial judge with broad
- discretion. Finally, some contend that the negligence-per-se doctrine is an inappropriate
- judicial encroachment upon the domain of the legislature.