Negligence ''per se'' is a doctrine in
US law
The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...
whereby an act is considered negligent because it violates a statute (or regulation). The doctrine is effectively a form of
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
.
Negligence ''per se'' means greater liability than
contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own neg ...
.
Elements
In order to prove
negligence
Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...
''
per se
Per se may refer to:
* '' per se'', a Latin phrase meaning "by itself" or "in itself".
* Illegal ''per se'', the legal usage in criminal and antitrust law
* Negligence ''per se'', legal use in tort law
*Per Se (restaurant)
Per Se is a New Amer ...
'', the plaintiff usually must show that:
# the defendant violated a common law duty of care or a duty of care under statute,
# the act caused harm or all harm the statute was designed to prevent, and
# the plaintiff was the victim suffering harm due to the breach of the duty of care generally and as a member of the statute's protected class.
The Common Law will not be abrogated by statute but may be adopted by statute. The Common Law will always remain our tradition and the basis of principles that inform the appropriate development of statutory laws and codes. New arrivals to the discussion may not like the word "owe" in the formulation of the discussion involving duties of care but it is understood that Tort law is about obligations and one party owes the other a duty of care in certain scenarios where we can say reasonably that such a duty exists and is rightfully owed, lets say, to a customer, to a passenger, to a business client and to a building occupant. We can say to the person who has failed his duty of care with poisoned products or negligent building works that he can face a claim where it will show that he will owe a duty of care, that he breached that duty of care and the claimant suffered harm or loss as a result of that breach. There is debate as to whether pure economic loss can be considered harm but it could be a significant loss and therefore sufficient harm in any context. We might have to reassess the discussion and ensure there is no doubt that economic loss is sufficient harm to satisfy a claim in tory and not only a claim under contract law or in Delict. The claimant can make his choice. The damages might be the same if awarded but it seems Tort is usually the body of law that we utilise to address duties, harm and loss when there is no evident written agreement between the parties.
In some jurisdictions, negligence ''per se'' creates merely a rebuttable presumption of negligence.
A typical example is one in which a contractor violates a building code when constructing a house. The house then collapses, injuring somebody. The violation of the building code establishes negligence ''per se'' and the contractor will be found liable, so long as the contractor's breach of the code was the
cause
Causality is an influence by which one event, process, state, or object (''a'' ''cause'') contributes to the production of another event, process, state, or object (an ''effect'') where the cause is at least partly responsible for the effect, ...
(
proximate cause
In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Ca ...
and
actual cause) of the injury.
History
A famous early case in negligence ''per se'' is ''
Gorris v. Scott'' (1874), a
Court of Exchequer case that established that the harm in question must be of the kind that the statute was intended to prevent. ''Gorris'' involved a shipment of sheep that was washed overboard but would not have been washed overboard had the shipowner complied with the regulations established pursuant to the
Contagious Diseases (Animals) Act 1869, which required that livestock be transported in pens to segregate potentially-infected animal populations from uninfected ones.
Chief Baron Fitzroy Kelly held that as the statute was intended to prevent the spread of disease, rather than the loss of livestock in transit, the plaintiff could not claim negligence ''per se''.
A subsequent
New York Court of Appeals
The New York Court of Appeals is the supreme court, highest court in the Judiciary of New York (state), Unified Court System of the New York (state), State of New York. It consists of seven judges: the Chief Judge of the New York Court of Appeal ...
case, ''
Martin v. Herzog'' (1920), penned by Judge
Benjamin N. Cardozo
Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American lawyer and jurist who served on the New York Court of Appeals from 1914 to 1932 and as an Associate Justice of the Supreme Court of the United States from 1932 until his deat ...
, first presented the notion that negligence ''per se'' could be absolute evidence of negligence in certain cases.
Strict liability
Negligence ''per se'' involves the concept of
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
. Within the law of
negligence
Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...
there has been a move away from strict liability (as typified by ''
Re Polemis
'' In Re'' ''Polemis & Furness, Withy & Co Ltd'' (1921) is an English tort case on causation and remoteness in the law of negligence.
The Court of Appeal held that a defendant can be deemed liable for all consequences flowing from his neglig ...
'') to a standard of reasonable care (as seen in ''
Donoghue v Stevenson
''Donoghue v Stevenson'' 932
Year 932 (Roman numerals, CMXXXII) was a leap year starting on Sunday of the Julian calendar.
Events
By place
Europe
* Summer – Alberic II of Spoleto, Alberic II leads an uprising at Rome against his stepfather Hugh of Italy, Hu ...
AC 562 was a Lists of landmark court decisions, landmark court decision in Scots delict law and English tort law by the House of Lords. It laid the foundation of the modern law of negligence in common law jurisdic ...
'', ''
The Wagon Mound (No. 1)'', and ''
Hughes v Lord Advocate''). This is true not just for breach of the common law, but also for breach of statutory duty. The criminal law case of ''
Sweet v Parsley'' (which required ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...
'' to be read into a criminal statue) follows this trend. In this light, "negligence ''per se''" may be criticised as running counter to the general tendency.
See also
*
Illegal ''per se''
*
Tedla v. Ellman
References
Further reading
*Restatement (Third) of Torts § 14 (Tentative Draft No. 1, March 28, 2001)
*''Grable & Sons Metal Prods. v. Darue Eng'g & Mfg.'', 125 S. Ct. 2363, 2370 (2005).
{{DEFAULTSORT:Negligence Per Se
Law of negligence