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Every law student should be familiar with the basic elements of negligence. Negligence is a key concept in Tort law that exists when some type of loss or damage occurs between parties that have no contract between them as the result of one person’s actions causing harm to another.
The fulfillment of a particular standard of care is expected, but in a negligence case, one party breaches that duty to cause the other party harm. The standard of care that normally applies is that of a reasonable person under the circumstances. But sometimes, the more specific requirements of a statute, regulation, ordinance, or other law will replace the general reasonable-person standard under the doctrine of negligence per se.
Elements of Negligence per Se
Several elements must be satisfied for negligence per se to apply.
Mandatory, Specific Command
Some jurisdictions will not apply negligence per se if the law merely sets forth some generalized, abstract rule rather than a specific command. For instance, a law against crossing a solid yellow line into the opposing lane of traffic is a mandatory, specific command. On the other hand, a regulation requiring a landlord to maintain safe, sanitary living quarters is arguably a generalized, abstract rule to which some jurisdictions would not apply negligence per se.
Penal Element to the Law
Many courts will apply negligence per se only if the law is penal — that is, if the law imposes some criminal penalty for its violation, be it a mere criminal fine or outright imprisonment. A civil penalty, such as license revocation or a civil fine, may not suffice.
Law’s Applicability to the Victim and the Accident
For negligence per se to apply, the victim must be within the class of persons the law was meant to protect. Relatedly, the law must have been meant to prevent the type of accident that injured the victim.
For instance, if a motorist negligently injures a pedestrian, and the motorist’s license plates are expired at the time, the motorist will not be held liable just because they violated some law requiring current license plates. Such a law is designed to raise licensing revenue and help identify cars and their owners, not to prevent injuries to pedestrians. On the other hand, if the motorist ran a stop sign and hit the pedestrian, negligence per se would likely apply. A law against running a stop sign is designed to prevent this precise sort of accident.
Exceptions to Negligence per Se
Even if the victim establishes the elements of negligence per se, the doctrine will not apply (and, thus, the general reasonable-person standard will control in the case) if one of several exceptions applies.
Excessive Danger in Complying with the Law
Courts will not apply negligence per se if complying with the law would have been, to the offender or others, more dangerous under the circumstances than breaking the law would have been. For instance, negligence per se might not apply if someone illegally crosses the street to get away from a vicious dog bearing down on them.
Offender’s Incapacity
Negligence per se will not apply if, at the time of the accident, the offender could not reasonably have complied with the law because of some incapacity, such as an unforeseeable heart attack or seizure.
Offender’s Reasonable Ignorance of the Law
Negligence per se will not apply if, at the time of the accident, the person in question neither knew nor should have known that the occasion demanded compliance with the law.
For instance, suppose an accident occurred because a motorist’s brake lights were out. If no one informed the motorist that their brake lights were out, they would have had no reason to know they needed to replace the lights. Hence, negligence per se likely would not apply.
Emergency Not of the Offender’s Own Making
Negligence per se will not apply if the offender faces an emergency that is not attributable to their own negligence or other misconduct. For example, a motorist’s vehicle may suffer sudden, unforeseeable mechanical failure, or a motorist may swerve to avoid a child who has suddenly darted out into the road.
Offender’s Inability to Comply with the Law
Negligence per se will not apply if, at the time of the accident, the offender could not comply with the law despite having made all reasonable efforts to do so.
Suppose a state statute required railroad companies to keep tracks clear of ice and snow at all times. But one day, an extremely heavy blizzard covered all of a company’s tracks with tons of ice and snow. Despite making all reasonable efforts to clear the tracks, the company could not get the tracks cleared until three days after the blizzard.
Here, if someone is injured on the second day due to the accumulated snow on the tracks, negligence per se likely will not apply to the railroad company. The company simply could not clear the tracks so quickly, despite reasonable efforts to do so.
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