Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Negligence Per Se: Another Road to Recovery

You were injured through no fault of your own.   Someone else’s actions – or their failure to act – caused you harm and significant pain, suffering, and loss.   In most cases, your personal injury claim will be based upon a theory of negligence.  In order to establish a claim of negligence, you must show

(1) the existence of a duty;

(2) a breach of a duty;

(3) an injury; and

(4) that your injury was caused by the breach of duty.

The existence of a duty – which is a standard of due care for the protection of others – can be found in (1) case law or common law (i.e. created by the courts), (2) consideration of the facts and circumstances of a particular case, or (3) by legislative enactment of a statute.     

A general negligence theory is usually based upon common law and consideration of the facts and circumstances of your case.  However, where there is a statute which either requires or prohibits specific conduct, an injured person has another road to recovery: Negligence Per Se.

Legally speaking, where a statute imposes upon any person a specific duty for the protection of others, and he violates the statute which proximately results in injury to another person, he is negligent per se.   For example, in Ohio, there are statutes and municipal ordinances that requires drivers to stop at red lights.   If a driver runs a red light, and causes an accident, he is negligent per se.  

Negligence per se is important as it can be much easier to convince a jury that someone should be responsible for your injuries if you can show that he violated a clear-cut statute compared to establishing general negligence which requires determination and weighing of facts and circumstances.

However, not all statutes can be used for a negligence per se claim.   First, you must be a “member of the class” that the statute seeks to protect.   In one case, an individual was injured from falling in a hole in an unpaved parking lot and sought to impose negligence per se by using a statute which required the owners of such lots to prevent dust and dirt from being kicked up when cars drive upon it.  Suffice it to say, the statute had nothing to do with protecting people from falling in holes.    Compare that case to an individual who was injured by a person running a red light; the red light statute was created to protect other motorists.   As such, in the red light case, the injured person is a “member of the class” for which the statute seeks to protect. 

Next, you have to determine if the statute is expressed in general terms or specific terms.  If the statute expresses, in general terms, conduct for the safety of others, negligence per se cannot be applied.  However, an injured person could still proceed on a negligence theory.   However, if the statute commands or prohibits specific conduct for the safety of others and there is a violation of that statute, such violation constitutes negligence per se.

If you have been injured by the negligence of another, please contact Scott for a no cost, no obligation consultation and case evaluation.