The main difference between negligence and negligence per se is the requirement to prove that the defendant breached the duty of care. In a negligence per se case, it is presumed that the defendant’s conduct failed to meet the reasonable person standard. Therefore, the defendant breached the duty of care owed to the plaintiff.
To better understand the difference, it helps to discuss what we mean by negligence and then compare that to cases based on negligence per se.
What is Negligence?
Negligence is the failure to act with the reasonable care that a person with ordinary prudence would have used in a similar situation. We refer to that person as the “reasonable person.” A reasonable person is a hypothetical person that the jury uses to determine whether a defendant’s conduct was reasonable in a given situation.
Most personal injury claims are based on negligence. Proving negligence requires you to show that the defendant:
- Owed a duty of care to the plaintiff;
- Breached the duty of care;
- The breach of duty caused the plaintiff’s injuries; and
- The plaintiff sustained damages because of the breach.
The reasonable person standard applies to the breach of duty element. A person breaches their duty of care when they fail to act with a reasonable level of care.
The jurors compare the defendant’s conduct to that of a “reasonable person.” If the defendant’s conduct fell short of the reasonableness standard, the defendant breached the duty of care.
For example, assume a plaintiff sues for damages sustained in a car accident caused by the defendant falling asleep at the wheel. The defendant took medication before driving that is known to cause drowsiness. The jurors may decide that a “reasonable person” would not drive after taking drugs that cause drowsiness. A reasonable person should foresee that they might cause an accident if they are drowsy.
Therefore, the defendant breached their duty of care by taking prescription medications they knew would make them tired. They chose to drive and fell asleep at the wheel. The result was a traffic accident that injured another person. In this case, the defendant was negligent.
How is Negligence Per Se Different?
In a negligence per se case, the defendant is presumed to have breached the duty of care because their conduct violated a law designed to protect the public. The law must be designed to prevent the type of harm that the plaintiff suffered.
For example, assume the driver in our previous hypothetical drank several alcoholic drinks at the bar (instead of taking medication) before driving. As a result, they caused a drunk driving accident on the way home and injured the plaintiff.
The DUI laws in Florida prohibit drivers from driving while under the influence of alcohol or when their BAC exceeds the legal limit. Drunk driving laws are enacted to protect the public by preventing DWI accidents.
Because the defendant violated the law and caused a DWI accident, their actions are presumed unreasonable. Therefore, they breached the duty of care.
Other examples of cases involving negligence per se might include:
- Driving over the posted speed limit and causing a speeding accident
- Criminal statutes making murder, assault, and other intentional torts illegal
- Building code violations that result in an injury (premises liability claims)
- Consumer product standards designed to protect consumers against defective product injuries (product liability claims)
The burden of proof shifts to the defendant to prove that their conduct did not breach the duty of care owed to the plaintiff.
Does Negligence Per Se Mean the Plaintiff Does Not Need to Prove Causation and Damages?
No, negligence per se only applies to the breach of duty element of a negligence case. The plaintiff must still prove that the defendant’s conduct was a direct and proximate cause of their injury.
For example, the plaintiff would need to prove their injuries were caused by the drunk driving accident. If the plaintiff does not have medical evidence to prove that the accident caused their injury, the jury may find that the defendant is not liable for damages.
Furthermore, the plaintiff must prove they sustained damages because of the breach of duty. Damages include physical injuries, emotional distress, medical bills, lost wages, and other losses.
Merely proving that the defendant’s conduct was negligent is not sufficient to recover compensation. You must also prove causation and damages to win the case.
Comparative Fault Applies in Both Types of Negligence Claims
Florida’s pure comparative fault laws state that an injured party can only recover full compensation for damages if they were not to blame for the cause of their injury. Therefore, if the plaintiff was partially at fault for the cause of their injuries, their compensation will be reduced by their percentage of fault.
In other words, if you were 40% to blame for the cause of a car crash, the defendant would only be liable for 60% of the value of your damages.
Negligence can be difficult to understand. If you have questions, contact a Miami personal injury lawyer for a free consultation.