Negligence Per Se

Question 1

Negligence Per Se

Answer 1

• according to Restatement (Third) of Torts, actor is negligent per se if violates statute designed to protect against the type of accident or harm caused by the conduct, + pl is someone the statute is designed to protect
• common ex = traffic violations

Question 2

Requirements for Negligence Per Se

Answer 2

• party must be a member of the class of persons the statute intended to protect
• injuries must be of the type that were sought to be avoided by the statute
• proximate causation (violation of the statute must be the proximate cause of the injuries)

Question 3

Safety Statutes

Answer 3

Two types:

• statute that authorizes civil suit
• statute that doesn’t authorize civil suit

For negligence per se, we are focusing on the 2nd type (since for the first, you wouldn’t need to go through negligence per se as your claim, you’d just bring suit on the basis of the violation)

Question 4

Martin v. Herzog - Facts

Answer 4

• 1920
• decedent of Martin (pl.) was driving buggy at night w/o headlights (in violation of a statute) -> hit by def’s car (def broke traffic laws by not staying on own side of road)

Question 5

Martin v. Herzog - Holding + Reasoning

Answer 5

• basically, both def + pl’s decedent were negligent, but pl loses b/c contributory negligence was a bar to recovery at the time

Question 6

Martin v. Herzog - Rule

Answer 6

• SHOULD USE AS BASIC NEGLIGENCE PER SE RULE

Doctrine: 1) safety statute, 2) type of injury 3) protected class

• an omission or failure to perform an act required by statute constitutes negligence per se -> violator may be liable if omission was the proximate cause of the injury
• “to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform”

Question 7

Tedla v. Ellman - Facts

Answer 7

• 1939
• law required (by way of traffic statute) that people walk on one side of highway
• pl and decedent were walking on opposite side for safety reasons (less traffic going in that direction) -> hit by def’s car + decedent killed + pl injured

Question 8

Tedla v. Ellman - Holding and Reasoning

Answer 8

• judge held pls not guilty of negligence per se b/c they acted reasonably + in accordance with statutory purpose of safety

Question 9

Tedla v. Ellman - Rule

Answer 9

• if there is a reasonable justification for disobeying the statute, then not automatically negligence per se (this is only a limited exception, where violation results in more of the safety the statute was intending to promote)

Question 10

Bauman v. Crawford

Answer 10

• 14 yr old hit while riding bike w/o headlight (required by statute)
• court says conflict between special standard for children + negligence per se -> holds that the teen not subject to neg per se violation, but can use the evidence of statutory violation to show reasonable teen of the same age wouldn’t have violated the statute under the same circumstances (ie ev of neg but not conclusive)

Question 11

Gore v. People’s Savings Bank

Answer 11

• lead paint case, violation of statute
• landlord not liable b/c he did not know about the land paint (otherwise would be strict liability) -> court says there IS negligence per se, but the lack of notice acts as an excuse

Question 12

Myrick v. Mastagni

Answer 12

• 2010
• statute required building owners to retrofit buildings to meet earthquake safety standards, although didn’t need to comply until 2018 (statute gave time for compliance)
• structure wasn’t reinforced -> collapsed + pl’s decedents died
• court says nothing in the ordinance discouraged earlier compliance -> compliance w/ statute doesn’t absolve defs of negligence (just b/c statute gave more time doesn’t mean they weren’t negligent in failing to retrofit sooner)

Question 13

Spalding v. Waxler

Answer 13

• def found liable for faulty brakes despite regular service to car b/c Ohio statute dictated that drivers maintain effective breaks at all times
• court does not allow the excuse exception to negligence per se here (Prof said this is a bit of strict liability-style thinking)

Question 14

Statutory Claims Distinguished

Answer 14

Basically, there are three possibilities:

• statute might expressly provide for right of action -> someone injured by a violation of the statute is statutorily given the right to sue the violator (means you’re claiming recovery under the statute itself, NOT under common law tort)
• if statute doesn’t have explicit provision for suits against violators, courts might still conclude it IMPLIEDLY has right to sue - implied right of action (uncovered through stat. interp.) -> means you’re still suing under the statute
• Option 3 - common law tort -> negligence per se (right to sue comes from the tort law, ie common law, of the state rather than the statute)

Question 15

Compliance with Statutes

Answer 15

• party who asserts negligence per se gets to use statute as a sword - saying opposing party’s failure to comply w/ statute amounts, in and of itself, to actionable negligence
• def can use compliance w/ statute as a shield, but its usually not as strong - compliance gets considered, but its not a “per se” (automatic) defense against an allegation of negligence

Question 16

Arguments in Favor of Negligence Per Se

Answer 16

• statute means crystallization of commonly held standards of care -> standards so well-established that they are rightfully legislated
• judicial convenience (legislatures already decide what standard of care is + judges don’t need to do BPL balancing)
• clarity/predictability of outcome (judge decides instead of jury)
• reflects legislative purpose to avoid certain type of harm + expression of rule -> even if no specific intent (ie. no civil suit provision) recoveries in tort suits would advance this general leg purpose
• another form of strict liability - if you cause harm, you should pay

Question 17

Arguments Against Negligence Per Se

Answer 17

• theoretically, might not represent crystallization of reasonable standard of care - legislature might have other motives than creation of universal standards
• courts inferring legislative intent to create standard of care in civil cases where legislature is actually silent (may not be considering civ liability consequences + might not have had due care in mind in crafting the legislation)
• imposition of liability w/o fault
• removes determination of negligence from fact-finding function of jury or court - runs counter to basic notion of determining tort liability