Negligence Per Se

In California, negligence per se is a legal doctrine that states that when a person violates a particular provision of a statute, that action is presumed to be negligent. The presumption of negligence can be rebutted if the defendant “did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” But establishing that an act was negligent per se is extremely helpful in the prosecution of a personal injury case because the jury will not be required to determine what constitutes the standard of care for a reasonable person in the particular situation.  

In order to prove negligence per se, the plaintiff must show that:

• The defendant violated a statute enacted for safety purposes;
• The violation caused the plaintiff’s injury;
• The act caused the kind of harm the statute was designed to prevent; and
• The plaintiff was a member of the statute’s protected class.

The first two elements are factual issues usually determined by a jury, while the latter two are decided by the judge as a matter of law.

In any negligence case, an important element that must be proven is the wrongdoer’s standard of care; in other words, how much care a reasonable person ought to take to prevent another’s injury. Application of the doctrine of negligence per se essentially means that the court hearing the case has accepted the conduct described in the statute as the standard of care for a reasonable person under the particular circumstances. An example of negligence per se in the context of a car accident would be if one of the drivers was driving under the influence of drugs or alcohol.

Legitimate excuses that allow for a statute to be violated without constituting negligence per se may include that:

• The defendant’s incapacity made a violation of the statute reasonable;
• The defendant did not know and should not have known that compliance was required;
• The defendant was unable to comply even using reasonable care;
• The defendant was confronted by an emergency not caused by his or her own misconduct; or
• Complying with the statute would have created a greater risk of harm to the defendant or to others.

Unless a defendant can show that he satisfies one of these exceptions, a violation of a statute enacted for safety purposes will establish negligence per se. This means that the court will not need to decide the appropriate standard of care.

Being the victim of someone else’s negligence can have lifelong consequences, including medical costs, unemployment, pain and suffering, and personal turmoil. If you have been injured due to another person’s negligence, you may be able to receive compensation in a personal injury suit. It is thus extremely important that you retain a competent and experienced attorney as soon as possible. If you have been injured, please contact the skilled San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. at (408) 289-1417 for a free consultation.