parent nodes: Breach of Duty | Negligence Torts | standard of care
per se negligence
A particular act or omission can be automatically held negligent under certain conditions if that act or omission violates (1) a statute or (2) a judge-made bright line rule.
Where the actor neither knows or should know of any occasion or necessity for action in compliance with the legislation or regulation, his violation of it will ordinarily be excused. Rest 2d Torts 288A, comment f.
Statute
In order to be per se negligent, an act or omission in violation of statute must cause an injury of the sort against which the statute is supposed to protect. [Martin v Herzog] (L for injury caused by car driving without lights at night); cf. [Tingle v Sunday] (NL where cow run over by train running on Sunday in violation of state law). In other words, the statute must intend to protect the injured person. [Selger v Steven Brothers] (NL for plaintiff who slipped on sidewalk not shoveled in violation of city ordinance); see also [Brown v Shyne] (NL for injury caused by unlicensed chiropractor).
A statutory duty can also be interpreted more broadly as an analogue of a common-law tort, so that for example an injury caused by breaking the law amounted to a trespass. [White v Levarn] (L where plaintiff shot defendant while both were breaking the law by hunting on a Sunday, on rationale that plaintiff was answerable in trespass).
The likelihood of per se negligence for a statutory violation also depends on the relative efficiency of different deterrence methods, such as the use of police to monitor and enforce driving laws.
Additionally, a statute may also provide a "shield" to defendants who can argue that their level of care matched the law.
Judge-made rules
An act may also be negligent if it violates a judge-made bright line rule. Bright-line rules may be more appropriate where the particular act creates a high risk of injury. [Theisen v Milwaukee Automobile Insurance] (L where driver fell asleep at the wheel).
Judge-made rules are generally disfavored because they are not easily adaptable to shifting circumstances and facts. See, e.g., [Baltimore and Ohio Ry v Goodman] (Holmes, J.) (failure to stop at railroad crossing per se negligent); [Pokora v Wabash Ry] (NL where driver hit by train after stopping and listening)