Negligence Per Se
Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?
Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.
Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."
The left turn statute does not contain a standard of reasonable care.
Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."
The careless driving statute does contain a standard of reasonable care.
So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?
Let's use the left turn statute.
The jury must determine the answers to the following questions: (1) Did the defendant intend to turn left within an intersection? (2) Was the plaintiff approaching from the opposite direction? (3) Was the plaintiff within the intersection?
If the answers to these questions are "yes," then the plaintiff had the right of way.
Accordingly, the left turn statutory standard of care is: "Did the defendant yield the right of way to the plaintiff?"
If the answer is "yes," then the defendant is not liable. If the answer is "no," then the defendant is liable.
It's that simple. There is no discussion of reasonable care. There is no discussion of the plaintiff's driving.
It would be legal error for the judge to instruct the jury that they should apply the reasonable care standard to the plaintiff's left turn negligence per se claim.
It would be legal error for the jury to apply the reasonable care standard to the plaintiff's left turn negligence per se claim.
Thus, it necessarily follows that the defendant should not be allowed to introduce any evidence that he or she was acting reasonably under the circumstances (The only exception to this is the "justifiable violation" of statute defense - which is like a "choice of evils"; e.g., "I sped through the left turn because I was trying to escape the road raged lunatic following me who was shooting at me.").
However, there is a huge practical problem. The problem is that the plaintiff also presents a negligence claim so the defendant gets to argue - regarding the same set of facts - that that he acted reasonably under the circumstances.
So how does the judge solve this problem?
He doesn't. He, and the attorneys, don't even recognize that this is a problem. The negligence and negligence per se claims just get crammed together and treated as one big glob. True, there is usually a negligence per se jury instruction, but it is certainly not sufficient to cause the jury to apply two different standards of care to the defendant's conduct when both sides argue about reasonable care and nobody tells them to apply the reasonable care standard only to the negligence claim and the statutory standard only to the negligence per se claim and that they should NOT apply the reasonable care standard to both claims.
The problem could be solved by differentiating negligence and negligence per se claims from the start and maintaining that differentiation all the way through trial so that the jury has no doubt about applying two different standards of care.
What, that's too complicated you say? Then personal injury juries must be dumber than commercial claim juries that have to consider actions with 3 or 4 or 5 or more claims with that many different standards of care. Anyway, personal injury juries already apply 2 different standards of care in cases that involve claims for actual and punitive damages, so they obviously can and do apply multiple standards of care.
Another consideration is that the jury might not have to apply the statutory standard. For example, if the answers to the 3 questions are "yes" and the defendant did not yield the right of way, then the judge should direct a verdict for the plaintiff on the negligence per se claim. In that event, the plaintiff should consider dropping the negligence claim so there's no more discussion of the reasonableness of the defendant's conduct. The only thing left to do would be to determine causation and damages.* [I have been threatening for quite some time now to file an auto case with only a negligence per se claim and exclude the reasonable care standard entirely from the case and trial, but I have not yet had the guts to do it.]
*Not quite. There is still the potential question of the comparative negligence of the plaintiff. I have argued that comparative negligence of the plaintiff cannot be considered under some statutory violation claims (specifically the left turn statute) but no trial judges have accepted my argument because there's a case that says comparative negligence is a defense to a negligence per se claim. I think the reading of the case is overbroad and I'm still looking for that right case to take up to the appellate court.
I will outline the negligence per se cases in a subsequent article.
