Negligence Per Se: A Shortcut To Compensation?
In most negligence matters, including car crashes, landowner liability, and medical malpractice cases, the plaintiff must prove duty, breach, cause in fact, proximate cause, and damages. In some instances, however, a legal shortcut may be available.
Alcohol-related crashes are a good example. Impairment begins with only one drink, in most cases. Such impairment violates the duty of care and, if that breach causes injury, the defendant is liable for damages. But if the defendant had a BAC of .08 or above, a case in civil court might be easier to prove.
Negligence Per Se
Some conduct is negligent not because the defendant breached a legal duty, but because the defendant violated a criminal statute. The elements of negligence per se (negligence “as such”) are:
- Legal Violation: A law does not necessarily have to be a criminal law that may lead to incarceration; traffic tickets and code violations may also qualify as negligence per se in Texas, so long as they carry a penalty.
- Protected Class: Each plaintiff must be a person the statute was designed to protect, such as a pedestrian or another motorist.
- Legislative Intent: The lawmakers must have intended the law to apply in civil court as well as criminal court.
- Specificity: The statute must specify the prohibited conduct, so overly broad ones may not meet this definition.
- Fairness: An application of negligence per se must be reasonable, regarding both the plaintiff and defendant.
Many of these elements are highly subjective, and in many cases, negligence per se is what the judge or jury says it is.
What It Means
To return to the previous example, in an alcohol-related crash that involved a defendant with a BAC of .03, the plaintiff must prove that the defendant breached the duty of care, and that the breach caused injury. On the other hand, if the BAC was .08 or above, negligence is established as a matter of law and it is not a question for the jury, assuming the judge finds that all elements are present.
There is another difference as well. In most negligence trials, the jury must answer a question like “Was the defendant negligent?” That question is somewhat ambiguous and has some moral implications. In a negligence per se case, though, the question is something like “Did the defendant run a stop light?” That question is much more objective and much easier for the jury to answer in the plaintiff’s favor.
Whether or not there is an available shortcut in your case, an experienced New Braunfels personal injury attorney will fight for the compensation you deserve. Call today for a free consultation.