Case Law: Negligence per se

• Mamma Plassaras v. Howard’s Supply of
• Batah (1995)
• Traditional negligence actions are brought under Section 318 of the Civil Code.
• To prove the defendant was negligent, the plaintiff must show a duty owed by the defendant to the
• plaintiff and a breach of that duty by the defendant (plaintiff must also show causation and damages).

Negligence per se claims (i.e., statutory negligence), brought under Section 319, substitute the defendant’s statutory violation for proof of duty and breach. Where a defendant violates a statute that is designed to protect a person such as the plaintiff from harm such as the plaintiff suffered, the defendant is presumed negligent as a matter of law.

• Sheridan v. IPX, Inc. (1998)
• “Excuse” is an affirmative defense to a negligence per se claim. A defendant’s violation of a statute is excused and thus does not constitute negligence per se under Midlands Civil Code § 319 if the defendant demonstrates that

(a) it neither knew nor should have known of the factual circumstances that rendered the statute applicable, or

(b) the defendant’s violation of the statute was due to the confusing way in which the requirements of the statute were presented to the public. Ignorance of the law, however, is not itself a defense to a negligence per se claim.

NEGLIGENCE PER SE

Hamilton v. Dr. Fu’s Home Gym Co. (1999)

• The focus in a negligence per se action is narrowly confined to whether the defendant violated a duty
• imposed by statute or regulation and whether that violation resulted in the sort of harm that the statute or regulation was designed to protect against.
• As a result, a great deal of evidence that would be entirely admissible in a traditional action based on negligence, recklessness, or strict liability is
• simply inadmissible in an action based on negligence per se, including evidence:
• - about a defendant’s subjective awareness of the risks posed by a particular product or course of action,
• -its reasons (or lack thereof) for proceeding in
• the way it did, and
• -its consideration (or failure to consider) alternatives.
• Trial judges must be particularly vigilant in enforcing these requirements, for the wrongful admission of such evidence in a negligence per se action will generally constitute reversible error.

NEGLIGENCE PER SE

James v. Sarah’s Patients, Inc. (2007)

• Under Criminal Code Rules 80.01and 80.02, “requisite intent” applies only to a person’s intent to “manufacture, distribute, or otherwise dispense.” It does not apply to the “significant quantity” or “Schedule I Substance” components of the statute,
• for which there is no intent or knowledge requirement.

• In other words, a defendant who knowingly manufactures, distributes, or otherwise dispenses a product, but does not know that it is a Schedule I Substance and does not know that it
• contains a “significant quantity” of such substance, can nonetheless be in violation of Criminal Code Rule 80.01.