Negligence per se claims are interesting. Negligence per se is not a cause of action as defined in Rule 1:6. It may not even be a theory of recovery. Negligence per se is simply negligence wherein the prohibited conduct is defined by law. For instance a statute may say that a stair rail shall be 42″ high. If the stair rail is not 42″ high, that is negligence. A jury cannot consider the possibility of a 38″ stair rail being okay. It is not. The statute has taken that decision away from the jury. A negligence per se claim not only establishes the duty but it also sets the standard of care.
Elements of Negligence Per Se
In Steward v. Holland Family Properties, LLC, 284 Va. 282 (2012) the court said that in a negligence per se matter there must be a showing that the defendant had a duty to the plaintiff. The standard of care for that duty is set by statute, the defendant engaged in acts that violated the standard of care, the statute was enacted for public health and safety reasons, the plaintiff was a member of the class to be protected, the injury was of the sort intended to be covered by the statute and the violation of the statute was a proximate cause of the injury. See also Robinson v. Moran, 259 Va. 412 (2000) Normally statutes such as reckless driving or failure to pay full time and attention may not serve as the basis for a negligence per se claim. In most instances the statutory foundation is something more specific that sets a bright line as to what conduct violates the statute.
Administrative Regulations
Standards of care specified in Federal regulations may not only establish what is the standard of care but also may constitute negligence per se. Wild v. Gaskins, 30 F.Supp.3d 458 (E.D.Va. 2014) Executive Orders issued by the Executive Department may well also constitute the standard of care.
Call or contact us for a free consult. Also for more info on negligence per se claims see the Wikipedia pages.
