What Is the Difference Between Negligence and Negligence Per Se?
Gregg Hollander | April 7, 2022 | Negligence
The term negligence is most commonly known in tort law within personal injury cases. Whether or not you are familiar with the term, knowing its definition can help you have an idea of what you might be facing with your case.
Negligence per se is another term that is used in tort law. While they may sound similar, the two are different legal terms.
What difference does the addition of “per se” mean? When do you know which term applies to a case? This post will explain.
What Is Negligence?
Negligence is the failure to take proper care in doing something; another word for it is “carelessness.” When it comes to the law, negligence is the failure to use reasonable care, where that failure causes damage or injury to another.
Reasonable care is the level of care that a “reasonable person” would take in the same circumstances. It is the standard used in determining whether a party has been negligent in personal injury cases.
In order for a person or entity to be considered negligent, there are four elements that need to be proven:
- Causation, and
Duty means that a legal duty of care exists between the plaintiff and defendant. It exists when there is a relationship of proximity between two parties. The parties can be two people or a person and an entity.
The element of breach is satisfied if a party acts below the standard of care. This also applies if a party’s failure to act falls below the standard of reasonable care. The question to ask here is, “What would a reasonable person or entity do?” in determining whether or not there was a breach.
Causation is satisfied when there is cause and effect between the party’s action and the injury suffered. There are two types of causation in the context of negligence: actual cause and proximate cause.
Actual cause, also referred to as “but for” cause, considers if the action factually caused the injury. For example, a vehicle runs a red light and crashes into a bicyclist. But for the fact that the vehicle ran the red light, the crash would not have occurred.
Proximate cause is less about whether the action factually led to the injury and more about whether the connection between the action and injury is an appropriate one. The injury must be a foreseeable consequence of the action. Using the same bicycle accident example from above, it is foreseeable that by running a red light, one might crash into another vehicle.
However, it would not be appropriate to hold the vehicle owner’s mother liable for the crash. If the mother had not given birth to the driver, the accident might not have occurred (thus satisfying actual cause analysis). This is why proximate cause analysis is necessary as well; it helps ensure that only the right parties and actions satisfy a claim for negligence.
Finally, there needs to be some kind of injury or harm suffered to satisfy the damages element. Damages can include monetary loss, physical or mental injury, and more.
What is Negligence Per Se?
Negligence per se is a form of negligence that is similar to strict liability. In order for there to be negligence per se, three elements must be satisfied:
- A statute or regulation was violated;
- The violation caused harm that the statute was meant to prevent, and
- The party harmed was meant to be protected by this statute.
While the two may seem similar, there are major differences to note between negligence and negligence per se.
With negligence per se, it is assumed that there was a duty and that the duty was breached by virtue of violating the statute or regulation. The causation element must still be proven as well as the damages element, however.
There are also limitations with this doctrine, insofar as the party harmed and the harm done must directly relate to the statute.
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