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What is negligence per se and how does it apply to my personal injury case?

How Negligence Per Se Works Under Texas Law:

In this article, we will explain what negligence per se is, how it's different from ordinary negligence, and how the ability to argue negligence per se benefits an injured person. Now, this can be a tricky subject for most folks for two reasons:

  • The concept of negligence per se is somewhat difficult to describe and/or understand.
  • It's all very subjective. Even when one understands the concept of negligence per se, and even if you can provide cogent arguments as to why some particular form of negligence should be considered per se negligence, the court may not agree with your reasoning.

Nevertheless, we're confident that we can adequately explain how negligence per se works in plain English.

Questions Answered on This Page:

  • What exactly is negligence per se?
  • How is negligence different from negligence per se?
  • What are the elements of a negligence per se case in Texas?

What is negligence per se?

In order to understand negligence per se, you must first understand what ordinary negligence is. Someone has committed an act of ordinary negligence when they have violated the "standard of reasonable care." The standard of reasonable care is a common law duty (an unwritten legal obligation) that requires us to act, in all facets of life, as a reasonably prudent person would.

For instance, a reasonable person checks his or her mirrors before changing lanes. If someone were to cause an accident by changing lanes and it can be proven that he didn't check his mirrors first, his conduct is said to be negligent by virtue of the fact that he failed to change lanes the way that a reasonably prudent person would have.

It would be impossible to have individual laws that regulate every type of bad conduct, yet we, as a society, certainly want there to be accountability for every type of bad conduct, so prosecuting someone under a theory of negligence is a good catch-all. We don't bad-lane-changing laws or doctors-shouldn't-eat-while-operating-on-a-patient laws; it's all covered under the reasonable person standard.

But, of course, sometimes we do have written laws that specifically forbid wrongful conduct. And if negligence is what we call it when someone violates the standard of reasonable care, negligence per se is what we call it when they violate an actual written law.

  • For example, let's say there is a law in your town that says citizens are not allowed to throw boomerangs within the city limits, yet someone is injured when a neighbor throws a boomerang into their yard, hitting them in head. The injured party would not have to prove that the defendant threw the boomerang in such a way that it violated the reasonable person standard. Rather, the simple fact that the defendant threw a boomerang in the city limits, in violation of the statute, is more or less inherently negligent. Thus, the injured party wouldn't sue the defendant under a theory of negligence. They would instead allege that the defendant was negligent per se.

So, the simplest explanation of negligence per se is to say that it is a negligent act that violates a duty owed by the wrongdoer to his victim, but rather than the duty being borne of the reasonable person standard, the duty is established by written statute. Alternatively, we could say that negligence per se is negligence as a matter of law, not as a matter of jury interpretation.

But why does that matter?

An allegation of negligence per se, if substantiated with solid evidence, is a silver bullet argument. At the end of a trial, a jury is given a document called a jury charge. The jury charge asks the group of jury members to collectively answer questions about the case. In an injury case where you allege ordinary negligence, the jury is asked something along the lines of, "Do you find that the defendant Bob Jones was negligent?" Well, negligence is very subjective, unintentionally creating some wiggle room for the jury to interpret or misinterpret whether the wrongful conduct of the defendant warrants paying compensation to their victim. But in a case where the plaintiff can allege negligence per se, the jury charge says something along the lines of, "Did the defendant Bob Jones run the stop sign, yes or no?"

In other words, if you can allege negligence per se, you can turn the nebulous idea of negligence into a black-and-white, yes-or-no question. Naturally, this makes it a lot easier for you to win.

But the court has to recognize it...

Let's imagine a scenario where a wrongdoer harms someone by virtue of his carelessness and the act the wrongdoer committed also violates a written statute. That would constitute negligence per se, no? Unfortunately, it's not the simple. The thing that officially classifies a particular wrongful act as negligence per se is when the court deems it so. So, on day one of the State of Texas' existence, Joe may have filed a lawsuit against Susan alleging negligence per se for her violation of some statute, and it was anybody's guess as to whether or not the court would agree with him that her wrongful conduct was in fact negligence per se rather than ordinary negligence. But once that case was decided, then all future cases wherein someone was injured by the same type of wrongful conduct in violation of the same law would benefit from knowing whether they needed to allege to the court that the defendant was ordinarily negligent or negligent per se.

The lesson here is that some wrongful conduct can meet all of the criteria normally associated with negligence per se, but if a judge says it isn't, then it just isn't.

How does the court determine what constitutes negligence per se?

Like any other allegation or argument made under the law, in order to establish that some wrongful act constitutes negligence per se, you must prove that all of the elements of a negligence per se action apply to the matter at hand. The elements of a negligence per se case are:

  • The wrongful act constitutes a violation of a code, regulation, or statute,
  • The plaintiff is the type of person the statute was designed to protect (such as pedestrians, the elderly, etc.),
  • The injury suffered was the type that the statute sought to prevent,
  • The statute which was violated had an associated penalty (meaning that there was some sort of fine, jail time, etc. normally associated with violating the statute),
  • The lawmakers who created the law intended for it to apply to injury cases,
  • That the statute clearly establishes what type of conduct is to be avoided, and
  • Lastly, the court must feel that holding someone liable for a violation of the statute is fair, workable, and wise (in other words, the court should try not to make a violation of a statute a veritable death sentence for a defendant just because they can).

Here's the tricky part. What you just read tells you how the court determines if some type of bad conduct should be presented to the court as negligence per se, but what does that mean and how does it work? Essentially, the attorney for the injured party will learn that his client's injuries were caused by some type of negligence. If that negligence also happens to be a violation of a written law (not just a violation of the reasonable person standard), then the attorney basically asks the court for permission to argue negligence per se instead of ordinary negligence. If the court agrees with him (after analyzing the aforementioned elements), then the injured person's lawyer can ask the jury to determine if the defendant should pay based on a "yes or no" analysis, rather than a "do you think that what the defendant did constitutes negligence" analysis. The result of this is simply that it makes the matter of determining fault much easier for the jury, which helps the injured party.

This process of asking the court for permission to allege negligence per se happens outside of the purview of the jury. This is a matter of law decided by the judge. But as we mentioned earlier, once a judge agrees that some type of wrongful conduct can be submitted to the jury as a negligence per se allegation rather than as a negligence allegation, that decision is binding on all future cases. As such, lawyers practicing in Texas today have a pretty good idea as to what bad conduct is able to be submitted as a negligence per se allegation and what bad conduct is just regular negligence.

How the jury handles negligence per se.

As we mentioned, before the trial begins, the plaintiff's attorney will walk the court through the elements of a negligence per se allegation in hopes of getting the judge to agree that the wrongful act being considered does indeed meet the criteria such that the injured person's lawyer can ask the jury to rule in a more favorable way. If successful, the jury charge will ask the jury to decide: 1) did the defendant violate a statute, 2) did he or she any have justification (or excuse) for doing so, and 3) was the violation of the statute the cause of the plaintiff's injuries. This allows the injured person's attorney to avoid all the difficulties of proving that the defendant didn't behave according to the sometimes-vague standards of what a "reasonable person" would have done. Seems simple enough, right?

Let's delve into those three elements a bit further:

  • You must prove that the defendant actually broke a law
    Per se claims must point to a specific code or ordinance and offer nearly-irrefutable facts that the allegedly-responsible party violated it. Some examples of how this could, or could not, work out successfully:

    • Under Texas's Transportation Code, there is a law that a disabled 18-wheeler display warning lamps when they are on the side of the road. If the truck driver fails to do this, he has technically violated the law. But how will you prove this a year later at trial? Maybe the truck driver---afraid he might never be allowed to drive again---will claim he put up the required lamps. Further, the victims of any accident that happened might be deceased.
    • Under federal law, it is illegal to sell a handgun to an underage purchaser. If a 16 year-old purchases a gun and then he accidentally hurts a friend, the friend will have a much easier per se claim against the gun store. This is because the teenager's age is simple to prove, and so long as it can be shown the boy bought the gun at the gun store.
  • When is someone "justified" in violating the law?
    Critical to proving a per se claim, as previously noted, is that the defendant was not justified in his or her conduct. But how can someone violate that law and "get away with it"? How is that fair? Simply, it can happen, but it's very rare. Often enough, a perpetrator is excused if they're too young, mentally incapable, or suffering some unforeseeable health event like a heart attack. Occasionally on the news you might hear about a man who suffered a stroke while driving, passed away immediately, and then his car ran "auto-pilot" through a stop sign. The jury may be inclined to say that even though he technically committed an act of negligence per se, he was justified in doing so because of his medical emergency.

  • You must be able to connect the statute's violation and your injury
    What courts call "proximate cause" is essentially common sense: it's not enough that the defendant broke the law---that illegal act must be the cause of the accident itself. In other words, negligence per se lawsuits are not about enforcing the law, but about making victims whole after the violation of a law directly causes someone harm. Sometimes this is deceptively easy, like when a driver ignores a stop sign, plows into another car, and kills the other driver. The line between the failure to obey a law and the injury (a death) is straight as an arrow. But often enough, this is where per se claims can get much more complicated. For example:

    • A truck driver breaks the law by not putting up warning flares behind his disabled truck. A thoroughly drunk driver comes along the scene, and due to his intoxication, swerves his car into the disabled truck. The trucker could likely win his defense based on the driver's intoxication. After all, who's to say that even if the flares had been up, it would have made any difference?
    • Many Texas cities require multiple exists in building where humans live or work. If a fire breaks out in a building with only one exit and some individuals are later injured by the fire, they'll have to show that but for the building owner's failure to provide multiple exits, they wouldn't have been hurt.

Are there harsher penalties for a defendant when they commit negligence per se?

Technically, no. Still, there is an assumption of liability when an act of negligence per se has been committed, which lends itself to a jury viewing the defendant's act as being egregious in nature. Using the examples above, we can all understand how someone may take their eyes off of the road for a split second. It's still wrong to act in that manner but it is reasonably forgivable.

However, we are largely unsympathetic to a defendant who drives drunk, runs a stop sign, or deliberately blocks a roadway with their vehicle, all of which serve as examples of negligence per se. In summary, even though there are not technical grounds for a jury to award more damages when the defendant committed an act of negligence per se, the awards in such cases to tend to be higher because it is less likely that fault will be assigned to the plaintiff, and because juries feel the need to penalize such an egregious act.

As you can now tell, negligence per se isn't as simple as it appears. This is why you need an attorney to fight your case for you that is well respected in the community for their honesty and tenacity. The attorneys at Grossman Law Offices have been representing clients in personal injury lawsuits for decades and are happy to discuss your options today - (855) 326-0000.

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