Jan 3, 2019

Negligence Per Se - What is It?

Negligence per se is an inference of negligence by a violation of a statute or code. This breach of law creates a rebuttable presumption of negligence in California courts. Some California judges reference this theory of law, as "statutory negligence," but in law schools, it is "per se."

What is the 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 essential to weigh all of these factors when trying to piece together the whole picture. While independent research and police reports may undoubtedly 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.

Also, a vehicle with bad tires, brakes, and perhaps a faulty clutch, could get into an accident. And when a vehicle owner knows such risks yet does nothing, they can be held liable.

What is the 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 they were the guilty 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. Negligence per se is what this is called. Some California judges reference this theory of law, as "statutory negligence," but in law schools, it is "per se."

Where is 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. The negligent wrongdoer was in contravention of a Vehicle Code Section, or Statute. The transgression was the proximate cause and actual cause of the mental and physical suffering and other damages. Was the victim in a protected class? Was the statute or code created to prevent the type of harm?  If so, this is called negligence, per se.

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

Getting 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 strong possibility that the at-fault factor is subject to a negligence per se instruction.

So this is a legal theory that puts the burden on the accused party to "prove "they were not at fault. This burden can turn the tables by forcing the accused to rebut that the violation of the statute. A defendant can say it had nothing to do with the purpose of the law. But once the bell is rung, this becomes a hard burden to rebut.

Does Your Lawyer Even Plead This Theory?

While many excellent PI attorneys understand the doctrine, many newbies, or lazy ones don't know how to plead this theory, and some people possibly don't even care. Usually, the party asserting the claim has the burden of proof. So naturally, this can be a useful tool to help a victim gain leverage in an accident case. Perhaps the guy who hit you ran a red light?  This violation is negligent, but it is also a statutory violation of the CVC.  But you certainly have a stronger case if all the elements remain present.

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 damage and injury caused, that's negligence per se! Many issues 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. Let a lawyer help you know what exactly negligence per se is and why it matters.