• Gregory Sandler

NEGLIGENCE PER SE: HOW BREAKING THE LAW CAN AFFECT YOUR SUIT


If you’re injured by someone who broke the law, should the fact that they broke the law guarantee you a win when you sue them? As with many things in the law, it depends.

In most accident cases, the person bringing the lawsuit has to show that the person who caused her injury was negligent—that he failed to act like a reasonable person would have acted in similar circumstances. However, that analysis can change if the person who caused the injury broke an existing law. This is called negligence per se.

In a negligence per se case, the injured plaintiff does not have to show that a reasonable person would have acted similarly. That’s because people are expected to obey laws. For that reason, when someone breaks the law, their conduct is considered to be negligent because they broke the law.

To prove a case of negligence per se, an injured plaintiff must show the following:

  • A law or ordinance was put into place for public safety reasons;

  • The law or ordinance was put into place to protect people like the injured plaintiff;

  • Breaking the law was the cause of the plaintiff’s injuries or damages.

Of course, it must also be shown that the person accused of causing the damage actually broke the law.

A 2004 decision issued by the Supreme Court of Virginia illustrates how this analysis works. In that case, Schlimmer v. Poverty Hunt Club, a 14-year-old boy (Schlimmer) was shot while hunting deer with his father at a hunt club. He was shot by a fellow hunter also hunting for deer. Schlimmer sued the man who shot him (Cofield), the hunting club, and others.

At trial, Schlimmer asked the trial judge to give the jury an instruction about negligence per se. Schlimmer believed that this instruction should be given because the game warden charged Cofield with reckless handling of a firearm under Virginia law. The judge refused to give the instruction. Schlimmer lost, and he appealed to the state supreme court.

The Supreme Court of Virginia held that the trial judge should have given the instruction on negligence per se. The Court explained that Schlimmer had “established that Cofield violated a statute that was enacted for public safety and that [the law] protect[ed] a class of people including hunters such as Schlimmer.” The Court ordered a new trial for Schlimmer.

This case is a good illustration of how negligence per se can help a plaintiff prove his case. Because negligence per se could apply, Schlimmer didn’t have to show that Cofield acted reasonably. The law provided a shortcut making that unnecessary.

However, this concept is also often used by the defendant and his insurance company to try to escape responsibility for a negligent defendant, by claiming that the injured person violated the law, somehow.

Consider a defendant driving drunk, at night, with his lights off. He is barreling down the road and strikes a person walking across the street. However, the evidence shows that the pedestrian is walking 10 feet outside of the marked crosswalk. This is a violation of the statute regarding jaywalking, but should it be negligence per se, making the injured pedestrian negligent and barring his recovery? Probably not, because of the requirement that the pedestrian’s negligence ACTUALLY BE A PROXIMATE CAUSE of his injuries. Here, the driver would likely have hit the pedestrian whether he was inside or outside the crosswalk, but the application of negligence per se could still be in play.

At The Sandler Law Group, we know the proper application of the doctrine of negligence per se, we know how to investigate the facts of your case to see if it is available to help you establish your right to recovery, and we are game to take on even the most difficult cases. If you have suffered injuries or trauma caused by someone else’s outrageous conduct, Call toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at www.sandlerlaw.net or email at GSandler@Sandlerlaw.net.

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