Negligence Per Se – What is It?

Negligence Per SeNegligence can be inferred by a violation of a statute or code. This breach of law creates a rebut-able presumption of negligence in California courts. This is called negligence per se. Some California judges reference this theory of law, as “statutory negligence”, but in law schools, it is “per se“.


 

Understanding Presumption of Negligence in Car Accident Cases

Car accidents don’t happen in a vacuum. There are many potential causes of such crashes and how they could occur. It is important to weigh all of these factors when trying to piece together the whole picture. While independent research and police reports may certainly help, usually the keystone to understanding it all is a skilled attorney.

Expert Los Angeles area personal injury attorney, Michael Ehline, explains how certain factors can affect why accidents can happen and how the law deals with them. Strict liability and presumption of negligence are two vital areas of law that must be considered in such cases. When dealing with a vehicle with bad tires and brakes, and perhaps a faulty clutch, it can be readily understood that such a car or truck could get into an accident. When a vehicle owner knows such risks yet does nothing to make the situation safer, they can be held liable.


 

Difference Between Strict Liability

Strict liability states that the party responsible for a tort, in this case a car accident, can be held liable if it can be proven that they were the responsible party. In this case, there is no need to prove malice or negligence. In a presumption of liability, as I wrote last year:

“Negligence can be inferred by a violation of a statute or code. This breach of law creates a rebut-able presumption of negligence in California courts. This is called negligence per se. Some California judges reference this theory of law, as “statutory negligence,” but in law schools, it is “per se.”


 

An Example of a Negligence Per Se Car Accident Claim

A good example to help you understand what negligence per se includes, would be the following hypothetical about a car wreck on a California interstate. If a negligent wrongdoer was in contravention of a Vehicle Code Section, or Statute, and transgression was the proximate cause and actual cause of the mental and physical suffering and other damages, the victim was in the protected class, and the statute or code was written to prevent the type of harm, this is called negligence per se.


This Per Se Jury Instruction Can Create Leverage in Your Potential Suit

Getting a victim leverage by creating a presumption of negligence in the eyes of the insurance adjustor and later defense team(s), is always a good thing for a person seeking a monetary payout for bad injuries. There is always a very substantial possibility that the at fault factor, whether it was a road condition caused by negligent road maintenance, or by a driver not paying attention to the cars in front of him causing a rear ender, is subject to a negligence per se instruction.

This is a legal theory that puts the burden on the accused party to “prove “they were not at fault. This can turn the tables by forcing the accused to rebut that the violation of the statute had nothing to do with the purpose of the statute, that the type of harm the statute was supposed to prevent did not happen, and that the plaintiff was not a person protected within the meaning of the statute. This is a hard burden to turn around once the bell has been rung.


Does Your Lawyer Even Plead This Theory?

While many excellent PI attorneys understand the doctrine, many newbees, or lazy ones don’t know how to plead this theory, and some possibly don’t even care. Normally, the party asserting the claim has the burden of proof. So obviously, this can be a useful tool to help a victim gain leverage in an accident case where a violation of a pertinent statute is evident. Perhaps the guy who hit you ran a red light?  This is clearly negligent, but it is also a violation of the CVC. So if the other elements are met, you certainly have a stronger case as a claimant.


Negligence Per Se is Not Just for Car Accident Cases

But other statutes exist besides the Vehicle Code.  There are Building Codes, City Codes, Health and Safety Code, the violations of which could bring this theory into play. Examples include injuries like those from a trip, slip and fall on a public or private sidewalk, or it could even be a violation of the California elder abuse statutes against an innocent senior citizen. If the statutes fit the elements, protected person, harm, type of harm and harm caused, that’s negligence per se!

There are many issues that are at play here, and all of them require the help of a skilled attorney. Ehline Law’s experience assisting in hundreds of cases has rebuilt many lives after auto accidents. Our team is specialized in car and truck accidents and personal injury law. We are ready to answer any questions to assist or to set up a free consultation. Please call or email us for more information and to see how we can help you, especially in such a difficult time.