What is "Negligence Per Se" in a Personal Injury Case?

If your injury resulted from someone else's violation of a law, you may have an easier time winning your personal injury case.

Updated by , J.D. · University of San Francisco School of Law

Negligence per se is a fault concept that can come into play in certain personal injury cases. Different jurisdictions define negligence per se in slightly different ways, but it generally applies in situations in which, while causing the underlying accident, the defendant violated a 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 a personal injury law principle that defines an act as negligent when 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. The fact that a law was violated establishes that the conduct was negligent.

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 when you're arguing that negligence per se should apply. 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 your damages (injuries and other losses).

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. (Learn whether a drunk driver is always at fault for a car accident.)

An allegation of "negligence per se "can often be brought as a distinct claim (called a "cause of action" in legalese) in a personal injury lawsuit, or it may fall under the umbrella of a standard "negligence" cause of action laid out in a personal injury complaint filed in civil court.

Proving Negligence Per Se

Proving negligence per se claim in a personal injury case usually means the plaintiff's attorney needs to establish:

  • 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 that a law was violated is usually relatively easy. If a builder is issued a citation for failure to abide by building codes, or the other driver received a notice of traffic violation at the scene of the car accident, there isn't much dispute regarding this first element.

Intent of the Law

Along with proving the violation comes 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 or some other type of harm, and that intent is usually stated within the text of the law itself.

The Plaintiff Is Part of the 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 necessary emergency care, he or she may have violated a federal law known as the Emergency Medical Treatment and Active Labor Act. The intent of the law is to prevent the injury or death of a member of the public who lacks health insurance or the ability to pay for emergency care. In this example, the ER doctor may be liable for negligence per se and could face a lawsuit for medical malpractice.

Negligence per se may seem straightforward, but as with most legal concepts, there are exceptions to consider and pitfalls to watch out for. If you believe you were injured as a result of someone else's violation of the law, your best next step might be to contact an experienced personal injury attorney to discuss your case and your best strategy for getting a positive result.

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