Proving the Theory of Negligence
Usually, when a plaintiff party seeks to establish a defendant party was negligent they must prove several elements:
1) The defendant had a duty to the plaintiff and others to act in a reasonable manner;
2) The defendant breached that duty by a certain act or omission;
3) the defendant’s act or omission caused the plaintiff to suffer an injury; and
4) The plaintiff’s injury was a reasonably foreseeable consequence of the defendant’s conduct.
Proving the theory of negligence can be a long and daunting task, but the law provides for shorter avenues to recovery in certain situations. One of those avenues is negligence per se. In order to prove negligence per se the plaintiff must prove:
1) The defendant violated a statute or ordinance;
2) The statute or ordinance provides for a punishment (fine or imprisonment);
3) the violation caused the kind of harm the statute or ordinance was intended prevent; and
4) the plaintiff was a member of a class the statute was intended to protect. If a defendant violated such a statute, then the plaintiff need not prove the defendant had a duty and breached that duty. The plaintiff may skip to proving the negligence legally caused the plaintiff’s injury.
1) Suppose Adam had too much to drink at a tavern and decided to drive home. As Adam was driving under the influence of alcohol he ran a red light and struck Betsy (a pedestrian) causing her to fall to the ground with great force. Since driving under the influence violates a statute and Betsy is in the class of people the statute is intended to protect, proving Adam violated a statute that makes it illegal to drive while under the influence of alcohol amounts to negligence per se and is proof Adam was negligent. This will allow Betsy to only have to prove Adams violation of the statute lead to her injury. She will not have to establish that Adam had a duty and that he breached that duty.
In contrast, let’s look at a real-life case that shows when negligence per se doesn’t apply.
2) In Gorris v. Scott (1874), the plaintiff’s sheep were washed overboard in a storm. The plaintiff sued the owner of the ship for failing to install pens to hold the sheep safely during the journey, as required by The Contagious Diseases Act of 1869. Had the pens been installed the sheep would have safely made the journey, but the purpose of The Contagious Disease Act of 1869 was to prevent the spread of disease, and not to prevent sheep from drowning. Because of the intent of the statute (preventing the spread of disease) the plaintiff could not claim negligence per se.
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