Negligence Per Se
Rule
When a defendant violates a statute and that violation satisfies certain criteria, the statutory violation establishes (or serves as evidence of) the breach element of negligence without requiring the plaintiff to prove that the defendant failed to act as a reasonably prudent person.
Elements (for adopting a statute as the standard of care — Restatement 2d §286)
A court will adopt the statute if the purpose of the statute is:
- To protect the class of persons to which the plaintiff belongs;
- To protect the particular interest invaded;
- From the kind of harm that resulted; and
- Against the particular hazard that occurred (the statute’s “zone of apprehension” need not specifically contemplate the hazard — De Haen).
Effect of Statutory Violation
Three approaches (from weakest to strongest):
- Some evidence of negligence: jury weighs the violation among other evidence.
- Rebuttable presumption of negligence: jury must find negligence unless defendant rebuts.
- Negligence per se (majority/NY rule): judge directs the jury to find breach — no further inquiry needed; excuses argued to the judge, not the jury (Martin v. Herzog).
Excuses from Statutory Violation
Even where negligence per se applies, a defendant may be excused if:
- Compliance would have increased the risk the statute was intended to prevent (Tedla v. Ellman);
- Necessity or emergency;
- Incapacity beyond defendant’s control.
Non-Dispositive Points
- Compliance with a statute does not mean the defendant was non-negligent.
- Non-compliance does not automatically mean the defendant is negligent (if statute not adopted or excuse applies).
Policy
- Creates a clear, predictable standard of care derived from legislative judgment.
- Promotes uniformity and reduces uncertainty in breach analysis.
Key Cases
- Martin v. Herzog — driving without headlights at night in violation of statute = negligence per se.
- Tedla v. Ellman — excuse recognized when compliance would have increased the hazard the statute was designed to prevent.