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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Thursday, March 18, 2010

7 - Negligence - Breach of Duty (Negligence Per Se)

7 – Negligence – Breach of Duty (Negligence Per Se)

In the last Torts session, we looked at the Learned Hand Test for breach of duty.  Now we look more closely at Negligence Per Se.

Negligence Per Se (NPS)


Under negligence per se, a defendant’s violation of a statute may establish that defendant has breached a duty of care by satisfying the elements of duty and standard of care.

If Plaintiff shows the elements of NPS, he does not have to OTHERWISE prove duty, standard of care and breach.  Proving the elements of NPS in fact establishes duty, standard of care and breach of duty.  Defendant will be negligent simply because the act IS negligent "ON ITS FACE."  However, there will be no LIABILITY of Defendant for BEING negligent in this situation, unless causation and injury are also established. 

Some authors say NPS is a DUTY analysis.  It could be a part of the breach analysis because if P establishes all of the elements of NPS, there IS a breach of duty.

To clarify, let’s look at it this way:  If the violation of a statute meets the test for NPS, then the statute establishes the duty and the standard of care.  Then the fact that Defendant has VIOLATED the statute also establishes the breach of duty.

Where do you do your analysis regarding NPS?  It probably doesn't matter, so long as you completely discuss NPS.    Levine has it in a section called "Special Duty Rules or Special Factors."  That is certainly good. 

On the other hand, a trusted number of colleagues say it is best to discuss NPS in breach, since that it the last element that NPE establishes.

On an essay, it really doesn’t matter.  If you do your analysis of NPS in duty and then you should say that "NPS is used to establish duty and also the standard of care and breach of duty IF all the elements of NPS are established."  If you do your analysis in breach, you should merely note that NPS is used to establish duty and standard of care.    

Violation of what kind of statute establishes negligence per se?  The answer is one that provides for a criminal or administrative enforcement remedy.

There are three requirements:
1.     The plaintiff must be within the class of persons the statute was intended to protect; and
2.     The injury or harm was of the type the statute was designed to protect against; and
3.     The defendant’s violation of the statute was not excused.

Here, it is important to note that even if the plaintiff can establish the requirements for negligence per se, plaintiff will not automatically prevail in the negligence suit against defendant.   The benefit to plaintiff of establishing defendant in “negligence per se” is that a finding of negligence per se only establishes duty, standard of care and breach of duty—plaintiff must still prove causation and damages to prevail in the negligence lawsuit.   NPS establishes that a D is negligent on its face.  So Defendant is negligent, but he will not be liable for negligence unless causation and damages is also proved.

Remember, if negligence per se cannot be established, the plaintiff must prove standard of care.  That is, the Reasonable Person Standard:  One must act as a reasonably prudent person in the same or similar circumstances.

Also remember, if negligence per se cannot be established, the plaintiff can still prove breach of duty by establishing the LH Formula, The Hand-Plus Formula or by Res Ipsa Loquitur.

We will talk about RIL, next time we return to torts.

Professor Doug Holden
©  2013.  Douglas S. Holden.  All Rights Reserved.

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