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Negligence Per Se

November 30, 2017

Bryan W. Crews, an Orlando personal injury attorney, has thirty plus years of courtroom experience.  When handling personal injury matters, his time is often spent proving that the defendant acted negligently.  Proving negligence can be fact intensive, requiring the collection of records, and taking depositions.  However, this is not always necessary in personal injury cases involving negligence per se.  Negligence per se is a special rule in tort law that shortens this process.

The terms “standard of care” and “negligence” impose general duties and are not specific.  However, statutes are generally very specific and can impose very precise duties and standards of care.  If applicable, a statute that provides for criminal penalties, including fines, will substitute for the common law standard of negligence.  Another way of putting this is that when a defendant violates a statute, he has per se failed to meet the standard of care.

To make use of this legal theory, the plaintiff must show that she is in the “protected class” intended by the statute, and that the statute was meant to prevent the type of injury the plaintiff suffered.  An obvious example of negligence per se is Florida’s driving under the influence statute.  The intended “protected class” of the statute are other drivers and pedestrians.  The particular harm to be avoided is bodily injury or fatality.

The effect of establishing that the defendant violated the statute is that the plaintiff has established negligence conclusively. Some statutes actually except this theory, stating that “[f]ailure to comply with the provisions of this section shall not be deemed negligence per se in any civil action.”  Whether an applicable statutory standard of care applies is different in each case.  Bryan W. Crews, an Orlando personal injury attorney will evaluate your case and determine whether there is an applicable statute.

Dog bites are another example of negligence per se.  Ordinances often require that dog owners keep their pets on a leash.  If a dog is being walked within a jurisdiction that has such an ordinance, and bites someone, the owner will be negligent per se.

While violation of a statute is per se negligence, the converse is not necessarily true.  A defendant cannot establish his conformance with the duty of care by demonstrating he abided by the applicable statute.  A violation of a statute may be excused if compliance would have been more dangerous.

If your personal injury case involves behavior that violated a statute, proving the elements of your case may not require the same level of proof as is required in typical personal injury matters.  Contact Bryan W. Crews, an Orlando personal injury attorney for an evaluation of your case.

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