The most often-used legal doctrine in personal injury law is negligence, or the failure to act with proper care. While negligence and negligence per se share traits and qualities, they are intrinsically different on a legal level. Each one comes with unique elements of proof to establish fault during a claim.
What Is Negligence?
Negligence in law is when a person or party behaves in a way that a “reasonable and prudent person” would not have in the same or similar circumstances. It refers to a careless act or omission that violates or falls short of the expected standard of care.
Proving negligence requires evidence of four key elements:
- Duty of care: the defendant (accused party) owed a legal duty to the plaintiff (injured party) to act with appropriate care and prevent foreseeable harm.
- Breach of duty: any act or failure to act that breaches the duty of care. This act could be unintentional, careless, wanton or reckless.
- Causation: a connection between the defendant’s breach of duty and the accident; the defendant’s actions are the proximate cause or cause-in-fact of the plaintiff’s harm.
- Damages: real losses suffered by the plaintiff, such as physical injuries, emotional harm, property damage or financial losses.
In general, someone is negligent if they knew or reasonably should have known that their conduct would result in harm or a foreseeable injury but engaged in the conduct anyway, or failed to take precautions to eliminate the risk.
What Is the Difference Between Negligence and Negligence Per Se?
What Is Negligence Per Se?
Negligence per se is a legal doctrine that does not rely on proof of a breach of the duty of care. Instead, it presumes a defendant’s actions were unreasonable because they violated a statute or law. Proof of the broken law is enough to establish negligence.
If a defendant involved in a personal injury case committed a crime or violated a statute in California, the plaintiff could use the negligence per se principle to establish liability without needing to provide evidence of ordinary negligence. This can make the claim easier to prove.
For instance, if a driver causes a deadly T-bone accident in Sacramento and an investigation reveals that the driver had a BAC of 0.20 percent, he or she could be held liable for the collision based on a violation of the state’s drunk driving statute alone; no further proof of the driver’s negligence is necessary.
Key Differences Between Negligence and Negligence Per Se
The legal doctrine of negligence can be used in a broader range of personal injury cases, as it describes a general state of failing to act with reasonable care. Negligence per se, on the other hand, is only applicable in situations where a state, federal or local law directly applies to the defendant’s harmful conduct.
While the evidentiary standard that must be met is “based on a preponderance of the evidence” for both types of cases, the party with the burden of proof varies. In a negligence per se case, once the plaintiff proves a legal violation, the burden of proof shifts to the defendant to show that he or she used reasonable care despite the broken law. In a standard negligence case, the burden of proof remains with the plaintiff.
For more information about negligence and negligence per se in relation to a specific personal injury claim, contact Jacoby & Meyers for a free consultation with an attorney.