Special Duty of Care:
Common Law Negligence:
Negligence Per Se:
Class of Persons/Class of Harm test:
There are circumstances under which the defendant owes a special duty of care, either in addition to, or in place of, the general duty of care, to the plaintiff.
Special duties can be established in several different ways, the most prominent of which is through state statutes. These special duties can arise by virtue of both civil statutes (where a statute provides a civil remedy for its violation) and criminal statutes (where a statute calls for criminal punishment for its violation). See
Where a civil statute has been violated, the plaintiff can sue directly under the statute without having to prove common law negligence. In other words, he does not need to independently prove duty, breach, cause and harm. For example:
A state passes a statute prohibiting people from leaving their keys in their cars. Diane leaves her keys in the ignition of her car while running into a store to buy milk. Seeing that Diane has left her keys in the ignition, Sam steals Diane’s car. In his rush to get away, Sam drives recklessly and hits Woody with the car while Woody is crossing the street. In this situation, Woody does not have to prove the four elements of negligence in order to recover for his injuries. Rather, he can recover simply by proving that Diane violated the state statute.
Where criminal statutes are involved, courts usually rely on them only to make a pre-existing duty more precise. If there is no pre-existing duty, the courts will not use the criminal statute to create a new duty. For example:
A state passes a statute making it a criminal offense for a pedestrian to withhold aid to car accident victims if the pedestrian is able to help. Woody is involved in a car accident and Diane, a pedestrian who is in a position to help Woody, does not. In this situation the legislature has criminalized an act (or, in this case, an omission) which the common law does not require the plaintiff to perform (there is no common law duty of rescue). In such a situation, the court will not use the criminal statute to create a new civil duty of rescue. Therefore, while Diane can be prosecuted criminally for violating the statute, Woody cannot sue Diane for damages that Diane could have prevented had she followed the statute.
Let us consider this example again, although, this time, lets assume that there is a preexisting common law duty of rescue and the statute criminalizes conduct which breaches this duty. In a situation like this, the court may use the violation of the criminal statute to establish breach of the civil duty. That is to say, the court will consider proof that the defendant violated the criminal statute as proof that he breached his civil duty as well.
Where the Plaintiff succeeds in proving breach of an existing civil duty by virtue of the Defendant’s violation of a criminal statute, the negligence that is established is called “negligence per se”. See
In order to establish “negligence per se”, three elements must be satisfied.
- The statutory duty must be clear. That is to say, the statute must clearly specify exactly what conduct or duty is required, who is required to undertake the conduct or perform the duty, and what qualifies as a breach of that duty.
- The defendant’s violation of the statute must be within the statutory purpose. To determine this second element, we look at two things. First, we look to see what kind of harm the state was trying to prevent when it passed the statute and second, we look to see if the plaintiff was a member of the class of persons the state was trying to protect with the statute. See
Ericson v. Kongsli, 240 P.2d 1209 (Wash. 1952). See also Darmento v. Pacific Molasses Co., 81 N.Y.2d 985 (1993). If the plaintiff has suffered the particular type of injury the state was trying to prevent and was a member of the class of persons that the state was trying to protect, then this “class of persons/class of harm” test has been satisfied and the violation is within the statutory purpose.
- There must be a lack of an excuse on the defendant's part for his behavior. If the statute is clear on its face, the “class of persons/class of harm” test has been satisfied so that the violation is within the statutory purpose and the defendant has no valid excuse for violating the statute, then the plaintiff can establish “negligence per se”.
Consider this example:
A state passes a statute making it a criminal offense for a pedestrian to withhold aid to car accident victims if the pedestrian is able to help. Woody was involved in a car accident and was lying, unconscious, in the middle of the road. Diane who is Woody's mother was in a position to help Woody, but did nothing. Woody suffers further injuries when he is hit by another car passing by the accident scene. Diane has no valid excuse for her inaction.
In this case Diane, being Woody's mother, had a common law duty to go to Woody's rescue.
Now let's examine the three elements we mentioned:
We said that the first element required for proving “negligence per se” is that the statutory duty must be clear on its face. Our statute is. It specifies exactly what duty is required (going to the rescue of car accident victims), it states who is obligated to uphold the duty (pedestrians), and it outlines what qualifies as a breach of that duty (not going to the aid of car accident victims). The second element we said is the “class of persons class of harm” element. Both of those elements seem to be satisfied in our example as well. It is reasonable to think that, in passing this statute, the legislature was trying to protect car accident victims from further injury that might be caused by oncoming traffic. In our example, Woody suffered further injuries when he was hit by another car passing by the accident scene. Thus, Woody has suffered the particular type of injury that the legislature was trying to protect him from. Second, it is safe to say that the class of persons that the legislature was trying to protect with this statute were car accident victims who could not get out of harms way. Obviously Woody was a member of that class. Thus, the second element for proving negligence per se, the “class of persons class of harm” element, has been satisfied as well. Since Diane has no valid excuse for her inaction, the third element has also been satisfied and Woody can prove "negligence per se” against Diane.