What is Negligence Per Se vs. Negligence?

What is Negligence Per Se?

Though negligence per se sounds nearly identical to plain old negligence, the two are completely different legal theories. Negligence per se means a statutory violation supplies the negligence element itself, so the plaintiff does not have to argue about what a reasonable person would have done. It does not apply to every statute. In deJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198 (Fla. 1973), the Florida Supreme Court sorted statutes into three groups.

A statute designed to protect a class of people who cannot protect themselves, such as the ban on selling firearms to minors in Tamiami Gun Shop v. Klein, 116 So. 2d 421 (Fla. 1959), is negligence per se and even contributory negligence is no defense to it. A statute that imposes a duty to take precautions to protect a particular class from a particular kind of injury is also negligence per se. A violation of any other statute is only prima facie evidence of negligence, which the jury weighs like any other evidence.

There can be evidence of negligence per se if:

• The defendant violated a public safety statute
• The plaintiff, or injured party, was a member of the public the statute was meant to protect
• The plaintiff's injuries include those the statute was intended to prevent
• The defendant's violation of the public safety statute directly caused the plaintiff's injuries

To determine if negligence per se may be applicable in your personal injury case, take a look at some of the most common examples of per se in action in Florida.

Common Examples of Negligence Per Se in Personal Injury Law

This is where Florida parts company with most other states. deJesus expressly places traffic regulations in the third group, so running a red light or speeding is prima facie evidence of negligence, not negligence per se, and the jury is free to weigh it. Statutes written to protect a defined class from a defined harm, such as the dog bite liability statute behind a claim for a dog bite injury, are the ones that carry per se effect.

Statutory violations that commonly come up in Florida injury cases:

• A motorist runs a red light and hits another vehicle, which is prima facie evidence of negligence
• When a driver with a blood alcohol content (BAC) over the legal limit strikes a pedestrian
• When a truck driver exceeds legal driving hours and causes a fatigue-induced crash
• When a product isn't manufactured according to state or federal guidelines and injures a consumer
• When a building is not built or repaired to code, and a visitor is injured as a result

In each of these, the statute does part of the plaintiff's work. How much depends on which deJesus category the statute falls into, and on proving that the violation actually caused the injury. Here is how Florida defines ordinary negligence for comparison.

The Difference Between Negligence And Negligence Per Se

Florida's standard jury instruction on negligence defines it as “the failure to use reasonable care, which is the care that a reasonably careful person would use under similar circumstances.” In other words, it means doing something that a typical person would not do under normal circumstances or failing to do something that a typical person would do under normal circumstances.

For instance, a careful person would make a full stop at a traffic light, whereas someone who fails to use reasonable care might break the law and drive straight through the light. However, proving whether or not a defendant was negligent isn't always as cut-and-dry as determining whether or not they broke a law.

Rather, determining if a person was negligent typically requires what's known as a burden of proof, which can require an in-depth investigation, eyewitness testimony, and other forms of evidence. Take a look at how a personal injury attorney would prove negligence in a court of law.

How Do You Prove Negligence?

Proving negligence is a bit more complicated than proving negligence per se. To establish proof of negligence in a court of law, there are four main elements a personal injury attorney must prove.

• The defendant owed the plaintiff a duty of care.
• The defendant breached the duty of care.
• The plaintiff suffered an injury.
• The defendant's breach of their duty of care caused the plaintiff's injury.

For instance, drivers owe a duty of care to motorcyclists to peacefully share the road. A driver would breach this duty of care if they failed to yield to a motorcyclist, causing an accident. If the motorcyclist suffered an injury from the impact of the accident, such as a traumatic brain injury, the driver who failed to peacefully share the road can be found negligent.

To prove the driver was negligent in a court of law, a personal injury attorney will need to prove that another reasonable individual in a similar situation would have done something different than the defendant. Continuing with the motorcycle accident example, an attorney may interview professionals or eyewitnesses to prove that the driver should have yielded for the motorcyclist. If the court agrees the defendant broke their duty of care, they can be found negligent.

How Do You Prove Negligence Per Se?

Where negligence per se applies, it removes one element from the case: the plaintiff no longer has to prove that a reasonable person would have acted differently, because the legislature already set the standard of conduct. The plaintiff still has to show that they are within the class the statute was written to protect, that their injury is the type it was written to prevent, and that the violation proximately caused it. deJesus lists all three requirements.

However, just because negligence per se requires a lesser burden of proof doesn't mean that an injury settlement is guaranteed. Instead, a judge or jury must still decide whether the defendant's negligence caused the accident. For instance, a driver can run a red light and technically break the law. But if the car they were to hit was making an illegal U-turn, the situation becomes a lot more complex.

So the negligence element may be settled early, but causation is not. The plaintiff still has to prove the violation caused the crash and that the crash caused the injuries claimed, which is where most of the litigation actually happens. A Florida negligence attorney can tell you which category your statute falls into.

How Can a Personal Injury Attorney Help?

Punitive damages are a separate question from negligence per se. Under Florida Statute 768.72(2), a defendant can be held liable for punitive damages only if the jury finds, by clear and convincing evidence, intentional misconduct or gross negligence. Gross negligence is defined in the same section as conduct so reckless or wanting in care that it shows a conscious disregard for the safety or rights of others. The claim also cannot be pleaded at the outset: subsection (1) requires the court's permission first, based on a reasonable evidentiary showing.

To help prove negligence per se, and establish that the defendant's negligence was the cause of a plaintiff's injuries, a personal injury attorney will:

• Leverage expert testimony to highlight the defendant's negligence
• Interview eyewitnesses of the accident to determine if they view the person at fault as negligent
• Seek testimony of a subject matter expert to reconstruct the accident details and highlight how the negligence directly contributed to a victim's injuries

Florida gives you two years from the date of the injury to file a negligence lawsuit under Florida Statute 95.11(5)(a). That period applies to injuries on or after March 24, 2023; older injuries keep the earlier four-year period. Miss the deadline and the court will dismiss the case no matter how strong it is.

Seek the Guidance of a Trusted Negligence Lawyer

Both in negligence and negligence per se lawsuits, proving liability can be quite the undertaking. Despite negligence per se being a “legal shortcut,” there is still a massive amount of work necessary to successfully recoup damages incurred from medical bills, lost wages, and more. Representation from a skilled negligence attorney can make the process dramatically easier for injured victims.

If you have been injured by someone else's conduct, contact our South Florida negligence attorneys for a free case evaluation. We will go through what happened, identify any statute the other party violated, and tell you whether it carries per se effect in Florida or only prima facie effect. Call 888-626-1108 to speak to a member of Weinstein Legal Team today.