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Negligence Per Se

The rule that breaking a safety statute - running a red light, serving alcohol to a minor, violating a building code - can itself establish that the defendant was careless, without the jury deciding what a reasonable person would have done.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

In an ordinary negligence claim the jury decides whether the defendant acted as a reasonable person would have. Negligence per se short-cuts that question. Where the legislature has already set a standard of conduct in a statute, ordinance or regulation, and the defendant violated it, most states treat the violation as establishing the duty and the breach: the defendant was negligent as a matter of law, and the only questions left are whether the violation caused the injury and what the damages are. A driver who ran the red light does not get to argue that running it was reasonable.

The doctrine has conditions. The injured person must be within the class of people the statute was enacted to protect, and the harm must be the kind of harm the statute was meant to prevent - a statute requiring livestock to be penned on a ship to prevent disease does not make the owner negligent per se when unpenned animals are washed overboard, in the case every law student reads. The violation must have caused the injury. And the defendant may offer the excuses the law recognises: that compliance was impossible, that the violation was caused by an emergency not of their making, or that they did not know and could not reasonably have known of the facts making the statute apply.

States differ in what the violation proves. Most treat it as conclusive on duty and breach. A substantial minority treat it as a rebuttable presumption of negligence, and some treat it as evidence of negligence the jury may weigh. Conversely, compliance with a statute is generally evidence of due care but not proof of it - a defendant who met the code can still have been negligent. Federal regulations can support the doctrine in state court in the same way as state statutes, though the federal statute must not itself preclude a private claim.

Where this comes from

Negligence per se is state common law, restated in Restatement (Second) of Torts §§ 286-288C and Restatement (Third) of Torts: Liability for Physical and Emotional Harm §§ 14-16 (2010). The class-of-persons and type-of-harm limits come from Gorris v. Scott, L.R. 9 Ex. 125 (1874), followed throughout the United States; Martin v. Herzog, 228 N.Y. 164 (1920), is the classic American statement that an unexcused statutory violation is negligence itself. Which effect a violation has - conclusive, presumptive or evidentiary - is decided by each state's courts and, for some statutes, by the statute's own terms.

When people hire a lawyer for this

The doctrine is a reason to find out early exactly which rules the defendant broke - the traffic code section, the building or fire code provision, the licensing regulation - and to get the citation, inspection report or agency finding that proves it. A lawyer can tell you whether the statute is one the courts of your state will apply this way, whether you fall within its protected class, and whether the defendant has one of the recognised excuses; those three questions decide whether the claim is a short one or an ordinary one.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.