LAW 511-002 – Torts I

Violation of Statute


Under the majority rule, causing a harm while violating a statute that imposes a specific duty for protection or benefit of others constitutes negligence per se.

Elements of violation of statute:

  1. Plaintiff is a member of the class of people the legislature intended to protect.
  2. Harm is the type of harm the statute intended to prevent.
  3. It is appropriate to impose tort liability.
    • A series of factors determines whether it's appropriate to impose tort liability based off statute violations:

      • Whether there is a relevant common law duty
      • Whether the statute clearly defines the prohibited or required conduct
      • Whether applying negligence per se to the statute would create liability without fault
      • Whether negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct
      • Whether the injury resulted directly or indirectly from the violation of the statute

A minority of jurisdictions extend violation of statute to apply to regulations as well.

Three positions on violation of statute:

  1. Majority position of negligence per se:
    Negligence per se
  2. In a minority of jurisdictions, violation of statute only gives prima facie (a rebuttable presumption of) negligence. While both allow excuses, a rebuttable presumption also allows for the defendant to show he was acting reasonably without using an actual excuse.
  3. In another minority of jurisdictions, violation of statute is merely evidence the jury can consider and does not even give a presumption of liability.

Excuses:

  1. The violation is reasonable because of the actor's incapacity
  2. He neither knew nor should have known of the occasion for compliance
  3. He is unable after reasonable diligence or care to comply
  4. He is confronted by an emergency not due to his own misconduct
  5. Compliance would involve a greater risk of harm to the actor or others

List is not exclusive

Some statute violations do not allow excuses

Compliance with statute is not proof it was not negligent, only evidence of due care.