Unfortunately, for as long as societies have existed, innocent people have suffered unnecessary death and personal injury due to the wrongful conduct of others. As a result, many of these societies have sought avenues through which those who are injured have civil recourse through the legal system. The resulting law is called tort law. In England, some rules were developed by judges through their written orders. Much of this law, called “common law,” (PDF) was passed on to America. In other instances, lawmakers passed applicable rules through the legislative process.
In the United States, tort law has continued to evolve. Common law tort concepts, including negligence, still exist. However, legislatures have also attempted to address tort issues through legislation that is passed into law. As a result, in Oregon, a person who is injured by another person in an automobile accident may have two different negligence-based theories under which to seek recovery. In this article, we will discuss the similarities and differences between negligence and negligence per se.
What Is Negligence?
To better understand negligence per se, it is important to first understand the concept of common law negligence. According to common law, to prove negligence, a plaintiff must show the following elements, with the shorthand reference in parentheses:
- The defendant owes a duty to the plaintiff (duty).
- The defendant breached the duty (breach). To prove breach, the plaintiff must establish the appropriate standard of care and show that the defendant breached the standard of care. The standard of care is typically what a reasonable person would do in the same or similar circumstances.
- The plaintiff suffered an injury (injury).
- The defendant’s breach of duty caused the injury (causation).
How Is Negligence Per Se Different?
Negligence per se applies when a statute or rule provides the standard of care. An example can help explain the difference.
Assume that a driver is traveling 60 miles per hour when he strikes another car and injures the driver and passenger. Under a common law negligence theory, the plaintiff must prove that the defendant violated the standard of care. The driver may claim that he was acting reasonably and that driving 60 miles per hour was reasonable on that particular road, under the circumstances that existed, such as good weather and very little traffic.
But what if the road had a posted speed limit of 45 miles per hour? By breaking the law, the law presumes that the driver has breached the standard of care. In fact, once the plaintiff proves that the defendant has committed the speed limit violation, the burden shifts to the driver to prove that he or she acted reasonably.
Limitations on Negligence Per Se
Negligence per se can certainly help a plaintiff prove a personal injury case. However, there may still be other issues at hand. There is a saying that negligence per se does not mean liability per se, and that is true for a few reasons.
First, the other elements of a negligence claim, such as injury and causation, must still be proved. Additionally, negligence per se will apply only if the statute that is violated was intended to protect against the type of danger that occurred and if the plaintiff is in the class of persons intended to be protected. For example, a tinted window law probably is not designed to protect against car accidents.
Additionally, even though the burden of proof shifts, defendants may still have a defense. That will depend on the facts of each particular case.
Call with Questions
If you have been injured in a car accident, you likely have many questions about your rights. We will be happy to answer all of these questions in a free consultation. Whether a theory of negligence, negligence per se, or other cause of action is right for you, the experienced personal injury attorneys at Nelson McNeil Rayfield are here to help you evaluate your case and recover the full amount you are due.