(305) 363-1735


Personal Injury Lawyer

Negligence is a central component of personal injury law. In traditional negligence cases, an injured plaintiff must prove that the defendant’s failure to use reasonable care was the actual and proximate cause of those injuries. Proving negligence can be difficult to do, due to the standard of care. This standard of care refers to the degree of care that a reasonable person would have provided under the circumstances. That is why there is a legal shortcut (in some cases) that can be used to make it easier for injured plaintiffs to receive compensation. This “shortcut” is known as negligence per se. 


Negligence per se is a legal doctrine that makes it easier to prove if a defendant acted negligently. A defendant is considered negligent if:

  • They violate a public safety statute, regulation, or law
  • The plaintiff is a member of the class that the statute was designed to protect
  • The plaintiff’s injury is one that the statute was intended to prevent
  • Defendant’s violation of the statute caused the plaintiff’s injury

Violation of the Law:

Proving the violation of law is usually relatively easy. Using an example of a car accident, if the driver of a car that caused the accident was found to have a blood alcohol level higher than is legally allowed, they are in violation of that rule and proving this element of the crime is satisfied.

Plaintiff is Part of the Protected Class:

Generally, this is usually pretty easy to prove as well. Most rules or regulations are intended for the general public rather than a specific group of people. This element of proving negligence per se is one of the most important elements to prove.


The plaintiff has to prove this to the preponderance of the evidence, or that it is more likely than not true. There also has to be direct (or actual) causation which means that but for the defendant’s actions or failure to act, the plaintiff’s harm would not have occurred. Proximate causation means “legal cause,” or one that the law recognizes as the primary cause of the injury. It is an action, or inaction, that produced foreseeable consequences without intervention from anyone else. 

A key element of negligence per se is that there is no longer a need to consider if the actions of the defendant was reasonable or not. If an applicable rule, regulation, or statute was violated, it is assumed to be unreasonable. 


An allegation of negligence per se, when substantiated with solid evidence, is an extremely effective argument. When the matter at trial is a negligence case, then the jury has some wriggle room to interpret for themselves if the actions of the defendant goes beyond reasonable care and warrants them paying compensation to the plaintiff. The question that the jury would have to answer would be along the lines of, “do you think that what the defendant did constitutes as negligence?” However, in a negligence per se case that wiggle room is eradicated because there is no room for interpretation. The question essentially becomes, “did the defendant break the statute, yes or no?”


There are some limitations to negligence per se, to where the defendant can’t be held liable for injuries that occurred. A safety statute or regulation only applies to the case if it is intended to protect the class to which the plaintiff belongs and if it intended to guard against the particular harm suffered by the plaintiff. 

For example, if there is a safety regulation related to electricity intended to protect against the risk of workplace injury and the plaintiff was an ordinary passerby, then the regulation may not be the basis for a negligence per se action. 

There are situations that can give rise to a defendant’s legitimate excuse. Under the Restatement (Second) of Torts, Section 288A, certain excuses are permitted for statutory violations. These legitimate excuses include when:

  • A defendant’s incapacity made it reasonable for him to violate the statute
  • A defendant neither knew nor should have known of the occasion for compliance
  • A defendant was unable to comply even when using reasonable care or diligence
  • The defendant was confronted by an emergency that was not caused by his misconduct
  • Compliance would have involved a greater risk of harm to the defendant or others


  • A driver breaking the speed limit and injuring a pedestrian
  • A construction company failing to follow building codes which lead to an employee getting injured
  • A restaurant failing to follow health regulations in the kitchen lead to customers getting sick
  • A driver with a blood alcohol content higher than legally allowed causing an accident

A reasonable person could be counted on to follow these rules and regulations. Thus, in the act of breaking these rules and regulations, they are liable to face negligence per se claims. 

If you have questions about an accident involving a personal injury case, contact a personal injury lawyer, like the office of the Brandy Austin Law Firm, for more information.