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Negligence “Per Se” – A Duty or Standard Established by Law

WHAT IS NEGLIGENCE PER SE?

Negligence per se is a legal concept that, in certain situations, may make it easier for plaintiffs to prove a negligence claim.

Where a defendant violated a law, ordinance, or regulation that establishes either a duty of care or the appropriate standard of care that people should use in specific circumstances, and the defendant’s legal violation caused injury to the plaintiff (or the plaintiff’s property), the law may hold that the defendant’s actions were negligence per se.

WHAT IS THE EFFECT OF NEGLIGENCE PER SE?  

Where a law establishes either a duty of care or the proper standard of care that people must observe, violation of the law creates a presumption of negligence by the defendant. This presumption is not conclusive proof of negligence, and the fact that a defendant broke the law does not guarantee the plaintiff will prevail on the negligence claim. In fact, the defendant may be able to rebut or counter the presumption by proving that a reasonable person would have violated the law under the facts and circumstances of the case at issue.

WHEN DOES NEGLIGENCE PER SE APPLY?

Negligence per se has four elements, all of which must be met in order for the doctrine to apply:

1. The defendant violated an applicable law, regulation, or similar legal standard. (Note that this requires more than just the existence of a law or regulation. The legal standard must be applicable to the defendant’s conduct in the relevant case.)

2. The defendant’s violation of the legal standard was the cause of the plaintiff’s injury (or damages).

3. The harm the plaintiff suffered was the type of harm the law (or regulation) was designed or intended to prevent.

4. The plaintiff (or the person who suffered injury) was part of the class of people the law (or regulation) was designed or intended to protect.

If the plaintiff cannot prove all of these elements, negligence per se will not apply.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Negligence claims are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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