Negligence Per Se in a Personal Injury Case

If an injury was caused by the defendant violating a law meant to protect the public from injury, the plaintiff will have an easier time winning their personal injury case.

Negligence per se in personal injury lawsuits can be brought as a distinct claim (called a "cause of action" in legalese) or it may fall under the umbrella of "regular" personal injury litigation. Different jurisdictions treat negligence per se in different ways, but utilizing it generally requires violation of a specific law. Read on to learn more about negligence per se and how it might come into play in a personal injury lawsuit.

What is Negligence Per Se?

Negligence per se is defined as an act that is negligent because it violates a law that has been designed to protect the public. Some common examples of laws that, if violated, can result in a negligence per se claim are speed limits, building codes, and blood alcohol content limits for drivers. Negligence per se more or less eliminates the "duty" and "breach" aspects of a negligence claim.

In other words, there is no need to demonstrate how the defendant's conduct was careless if you are relying on negligence per se.

In a car accident case, for example, that means you don't need to show how the other driver fell short of the appropriate duty of care. Either the law was violated or it wasn't. If the law was violated, the discussion moves to whether the violation was the proximate cause of damages.

In the car accident context, negligence per se would involve such offenses as driving under the influence, reckless driving, running a traffic light or stop sign, or speeding.

There are numerous other examples, all dependent upon state and federal law.

Proving Negligence Per Se

Proving negligence per se claim in a personal injury case usually means the plaintiff -- along with his or her attorney, if retained -- needs to establish the following:

  • that the defendant violated a law
  • that the intent of the law was the prevention of the injury that ended up occurring, and
  • that the injured patient (the plaintiff) is counted in the class of people the law was intended to protect.

Violation of Law

Proving the law was violated is usually relatively easy. If a builder fails to abide by building codes, there isn’t much question regarding the first point.

Intent of the Law

Part and parcel with proving the violation is discerning the intent of the law. Most laws providing for a negligence per se claim are clear in their intent. They are designed to prevent bodily injury, and that intent is usually stated within the text of the law itself.

Protected Class

The class of people the laws are designed to protect is more often than not the public at large. If an ER doctor refuses to provide emergency care in the ER, he or she has violated federal law. The intent of the law is to prevent the injury or death of a member of the public due to lack of insurance or ability to pay for care. The ER doctor has committed negligence per se and could be sued for medical malpractice.

Negligence per se in a personal injury case is not rare, but it’s not nearly as common as run-of-the-mill common law negligence. If you believe you were injured as a result of someone breaking a law, you may have a good negligence per se case – making a personal injury claim that much easier to win. Your best next step might be to contact an experienced personal injury attorney to discuss your case and your legal options.

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