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No Way, Not Negligence Per Se: Identifying and Combating Improper Negligence Per Se Claims

On Behalf of | Apr 28, 2016 | Firm News

Plaintiff attorneys frequently begin personal injury lawsuits with a petition alleging a host of standardized claims. This generally includes multiple negligence per se claims. These standardized negligence per se claims are often improper and unsupported by facts or statutes. A watchful defense attorney should be able to identify improper negligence per se claims and dispose of them with a quick motion for summary judgment.

A proper negligence per se action arises when (1) the legislature enacts a statute establishing a duty of care, (2) a party violates that statute, and (3) the violation causes an injury. For example, consider a stop sign statute that says, “All drivers must stop at stop signs.” The legislature, in effect, has established a minimum duty of care for drivers who encounter a stop sign-stop. If a driver blows through a stop sign and hits another car, then the driver who failed to stop is presumably negligent unless he can show some mitigating circumstances. The real world, however, is rarely this simple, and negligence per se claims often have nuanced requirements. The key for disposing of these claims is for the defense attorney to be aware of these nuances and to analyze each negligence per se claim individually to determine its validity.

When first analyzing a negligence per se claim, determine (1) whether there is actually a statute governing the allegedly negligent act and (2) if there is a statute, whether it discusses the act itself. For an act to be negligent per se, it must be specifically defined in the statute. For instance, driving faster than the speed limit is negligence per se, but following another vehicle too closely is not. Therefore, a plaintiff cannot allege negligence per se simply because a defendant following too closely caused an accident. Perhaps a reasonable person would have followed at a greater distance, but it is impossible to have a law covering every single decision a person makes. Reasonableness, carelessness, and falling short of the duty of care (standard negligence considerations) are not factors to consider when determining whether an action is negligence per se.

If a statute was indeed violated by a specific act, then the next step is determining whether the intent of the statute was to prevent whatever occurred as a result of the act. For example, a law making it an offense for a train to stand idle in a railroad crossing for more than five minutes is intended to prevent traffic delay. In this example, assume a train is in a crossing for more than five minutes and a truck hits the back of a car, causing that car to hit the idle train. The car’s driver cannot bring a negligent per se claim under this statute because the intent of the statute prohibiting train idleness on the crossing was not to prevent collisions. Pa. R. Co. v. Huss, 180 N.E. 919, 921 (1933).

After determining that a law has been violated and that the result of that violation is what that law sought to prevent, an attorney must then determine whether the injured party is in the class of people the law was designed to protect. Most safety related laws seek to protect the public at large, so usually the injured party is part of the protected class. But laws can be tailored to cover a specific group of people, so an attorney should read the statute carefully.

A defense attorney can also use negligence per se defensively to mitigate or eliminate a plaintiff’s case. Plaintiffs and defendants can both make a claim for negligence per se. A plaintiff will discuss the act in the Petition and how that act caused damages, but negligence per se can also be brought as a defense. For instance, a defendant can state in the Answer that the plaintiff was negligent per se for failing to wear a seatbelt.

When addressing negligence per se claims, a defense attorney should analyze each claim and verify that (1) a statute was violated, (2) the specific actions are those the statute prohibits, (3) the injuries are those the statute seeks to prevent, and (4) the injured party is a person the statute intended to protect. If a negligence per se claim does not meet one of these requirements, file a motion for summary judgment against that claim.

Takeaways & Practical Tips

  • Plaintiff attorneys commonly allege multiple negligence per se claims;
  • A proper negligence per se claim should allege:
    • a statutory violation;
    • the statute prohibited the specific offending acts;
    • the resulting injuries were of the type that the statute sought to prevent; and
    • the injured party is of the class protected by the statute.
  • Analyze each specific claim and file a motion for summary judgment to remove all improper negligence per se claims;
  • Remember, defendants can use negligence per se claims as a defense if a plaintiff’s actions can be classified as negligence per se.


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