What Is the Difference Between Negligence and Negligence Per Se?
February 8, 2023 | Sagi Shaked | Personal Injury
Negligence, a legal term of art that means something like “carelessness,” is the most common basis of personal injury lawsuits. There are several different kinds of negligence—ordinary negligence, negligence per se, gross negligence, and (in criminal court) criminal negligence. It is particularly important to grasp the distinction between ordinary negligence and negligence per se.
What Is (Ordinary) Negligence?
Ordinary negligence occurs when someone fails to exercise “reasonable” care to prevent harm to another. The four elements of a negligence claim are duty of care, breach of duty, damages, and causation.
Duty of Care
Everyone, except perhaps a child below a certain age, has a duty to act with reasonable care to prevent themselves from injuring someone else. The most commonly used example is driving. Drivers have a duty to keep a safe distance behind the car ahead of them. In another context, shop owners have a duty to repair or warn of dangerous conditions that their customers might encounter on their property.
In addition to the foregoing ordinary duty of care, there is also an elevated professional duty of care that applies to people with specialized training, such as doctors.
Breach of Duty
Breach of duty means failure to meet the applicable standard of care. This might mean doing something wrong, or it might mean failing to do something right. The key question is whether a “reasonable person” would have acted in the same way the defendant did at the time. If the defendant’s conduct fails to meet this reasonability standard, they were negligent. In other words, Duty + Breach = Negligence.
This standard is inherently ambiguous. Is driving the speed limit during a snowstorm negligent, for example? Different juries might come to different conclusions. An emergency room physician might lose a medical malpractice claim for exactly the same first aid technique that was found appropriate for an untrained “good Samaritan” to perform at the scene of an accident.
“Damages” means a physical injury and the victim’s resulting losses. These damages can include economic damages, such as medical bills, and non-economic damages, such as pain and suffering. In some cases, they can also include punitive damages. Victims sometimes have trouble proving the exact amount of damages, especially when they involve lifetime medical treatment or occupational disability.
Causation is fairly self-explanatory; the defendant’s negligence must have caused the victim’s losses. Nevertheless, Florida law recognizes two forms of cause: “but for” cause and proximate cause.
In “but-for” causation, circumstances must normally be such that the victim’s injury would not have happened except for the defendant’s negligence. In proximate causation, circumstances must be such that a reasonable person, given the fact of the defendant’s negligence, would have foreseen that the victim would likely suffer an injury. In other words, remote cause-and-effect relationships cannot trigger personal injury liability.
Negligence Per Se
In negligence per se, the two legal elements that comprise negligence — duty of care and breach of duty — collapse into a single element. The defendant must have violated a safety law or regulation designed to protect people in the same position as the victim. Thus, in a personal injury case, the elements of negligence per se are:
- The defendant violated an applicable safety law or regulation (automatic negligence);
- The victim suffered a physical injury; and
- The defendant’s negligence caused the victim’s injury.
This standard removes the “reasonable person” ambiguity from the negligence standard. There is no need to ask whether the defendant’s conduct was reasonable — it either violated a safety law or regulation or it didn’t. Consequently, negligence per se is an easier way to prove negligence. Therefore, it makes it easier for the victim to prove liability.
A Personal Injury Lawyer Can Help You Prove Negligence Per Se
Negligence per se claims are particularly common in some types of personal injury accidents. Commercial truckers, for example, are subject to two different sets of state and federal regulations, any one of which might result in a finding of negligence per se. Negligence per se can apply to many other circumstances as well, and a skilled personal injury attorney can help you present your best arguments.