X. Negligence Per Se | Scott Soloway | March 09, 2018

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X. Negligence Per Se

Original Creator: Jonathan Zittrain Current Version: Scott Soloway 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. 1.1 Show/Hide More Martin v. Herzog--"The Buggy Without Lights"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      To what extent, if any, should courts allow the violation of a statute to inform their analysis of negligence?
    1. 2.1 Show/Hide More Platz v. City of Cohoes--"The Sunday Carriage Accident"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should courts consider the objective of the statute when negligence per se is invoked?
    2. 2.2 Show/Hide More Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      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: Scott Soloway
      How should the court determine the class of individuals that the legislature aimed to protect through statute?
    4. 2.4 Show/Hide More Robinson v. District of Columbia--"The Jaywalking Custom Case"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      If a particular statute is flouted by the custom of the public, should courts still rely upon the statute for the purposes of NPS?
    5. 2.5 Show/Hide More Tedla v. Ellman--"Walking on the Other Side of the Highway"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should the doctrine of NPS apply when obeying the statute would go against the intention of the statute?
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March 09, 2018

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Scott Soloway

business lawyer practicing law

Boston

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