Negligence Per Se | Samantha Bates | January 18, 2016


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Negligence Per Se

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

This section explores yet another way in which – sometimes – the vague negligence standard of reasonableness can be supplemented: negligence per se. In those rare (and happy?) occasions in which a rule of behavior is laid down by the law – for the purpose of safety, and perhaps as part of the criminal canon – we see courts willing to adopt the law itself as the standard of care. When this is done, it does not merely provide a basis for inference as res ipsa does, but rather substitutes for the standard itself. If the conditions for NPS are met and the law can be shown to be broken, the defendant is liable (or, if contributory negligence is claimed as the candidate for NPS, the plaintiff’s case is lost).

The cases here provide good examples of when the doctrine works – and when exceptions to its application are sought and granted.


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  1. 1 Show/Hide More The Basic Doctrine
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    1. 1.1 Show/Hide More Martin v. Herzog--"The Buggy Without Lights"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      To what extent, if any, should courts allow the violation of a statute to inform their analysis of negligence?
      Plaintiff and her husband were driving a buggy on a highway in the darkness. During the drive, their buggy collided with the defendant’s automobile, killing the plaintiff’s husband. Plaintiff claimed the defendant was negligent for crossing the center line of the highway. The defendant claimed that he should not be at fault because plaintiff’s husband was driving without lights. There was a statute which required lights on cars when traveling in the dark.
    1. 2.1 Show/Hide More Platz v. City of Cohoes--"The Sunday Carriage Accident"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should courts consider the objective of the statute when negligence per se is invoked?
      Plaintiff was riding with her husband in a carriage on Sunday. City workers left a pile of dirt on the street, directly in the way of traffic. The plaintiff’s carriage was overturned when it encountered the pile. Plaintiff sued for her injuries on a theory of negligence. The city asserted that the plaintiff’s violation of a a “Sunday law”—which prohibited riding on the streets in observance of Sunday—barred her from recovery.
    2. 2.2 Show/Hide More Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      If an unlicensed actor causes harm, should the fact that the actor lacked a license be evidence enough for negligence per se?
    3. 2.3 Show/Hide More Rushink v. Gerstheimer--"The Key in the Ignition Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      How should the court determine the class of individuals that the legislature aimed to protect through statute?
      While running an errand, the defendant left her car unattended with the keys in the ignition. The plaintiff’s decedent—a resident patient in a nearby psychiatric facility—drove away in the vehicle and hit a nearby tree soon after. The collision with the tree resulted in his death.
    4. 2.4 Show/Hide More Robinson v. District of Columbia--"The Jaywalking Custom Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      If a particular statute is flouted by the custom of the public, should courts still rely upon the statute for the purposes of NPS?
      Plaintiff was struck by a police van while jaywalking. Traffic regulations required all pedestrians to use crosswalks when crossing the road. However, plaintiff argued that it was customary for local pedestrians to cross the street at the unmarked location where the accident occurred.
    5. 2.5 Show/Hide More Tedla v. Ellman--"Walking on the Other Side of the Highway"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should the doctrine of NPS apply when obeying the statute would go against the intention of the statute?
      Plaintiff and her brother were walking eastward on a highway, on the right side of the center line. The defendant’s automobile struck both plaintiff and her brother as it passed by. The plaintiff was injured and her brother was killed. A statute provided that ‘pedestrians shall keep to the left of the center line’. However, at the time there was very heavy traffic heading westward, and only a few cars going east.

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January 18, 2016

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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