Negligence - per se
What are the three steps of analysis for "negligence per se"?
First, the court must find that the statute/regulation sets a standard of care and that the standard applies to this class of person and this type of harm. Second, the jury must find that the defendant violated the statute/regulation. Third, the violation must not be excused.
What is the 2-part test a court uses to determine whether "negligence per se" applies to this victim and this harm (3R version)?
A court will apply negligence per se if the actor violates a statute/regulation that (1) is designed to protect against the type of accident the actor's conduct causes, and (2) if the accident victim is within the class of persons the statute/regulation was designed to protect. [TIP: The judge looks at text of the statute/regulation to determine the class of persons and type of harm the legislature intended to protect when it adopted the statute/regulation]
What are the three steps of analysis for "negligence per se
First, the court must find that the statute/regulation sets a standard of care and that the standard applies to this class of person and this type of harm. Second, the jury must find that the defendant violated the statute/regulation. Third, the violation must not be excused.
What types of statute/regulations may be adopted by a court to set a standard of care under the doctrine of negligence per se
In negligence per se, the court adopts criminal statute, administrative regulation or municipal ordinance to set a standard of care. While these statutes/regulations are not tort statutes, they must regulate safety (set a standard of care) and not be merely a licensing statute.
What elements of a Negligence claim does "negligence per se" help a plaintiff prove?
Negligence per se assists the plaintiff in proving the duty and breach elements. The plaintiff proves that the defendant owed a standard of care set by the statute/regulation and the violation of the statute/regulation is breach. TIP: To recover for Negligence in addition to proving negligence per se, the plaintiff must also prove the element of injury and the element of causation (that the violation was an actual and proximate cause of her injury).
What is "negligence per se?"
Negligence per se is the unexcused violation of a statutory/regulatory standard of care.
If the court rejects a request for a "negligence per se" instruction, can plaintiff still argue a lack of ordinary care?
Yes, plaintiff is free to argue both negligence per se claim and an ordinary care negligence claim. If the negligence per se claim fails (if the court refuses a negligence per se instruction OR if D is not found to have violated the statute/regulation OR if the violation is excused) the plaintiff is still free to argue she should recover for ordinary negligence.
