Negligence Per Se
The concept of negligence per se has become well entrenched in Florida law, as well as in the tort law of most jurisdictions in the United States. The doctrine in essence mandates the substitution of a statutory or regulatory provision for the common law “reasonable person” criteria in negligence actions for determining the extent of a duty and whether there has been a breach of that duty.1
Negligence per se was first applied in courts across the country over 100 years ago as legislatures and courts grappled with the difficulty of addressing the increasing “number of accidents spawned by industrial and urban growth.”2 In its most elementary context, the doctrine holds that violation of an applicable statute or regulation constitutes negligence as a matter of law. At first glance, the doctrine makes it seemingly easier to prove a defendant acted negligently. The statutory or regulatory provision creates a standard of care to be applied by the finder of fact as opposed to the normal “reasonableness” standard3 in negligence cases.4
Over the last century, as our society has grown increasingly complex, opportunities for application of the negligence per se principle have multiplied. The statement will come as no surprise to experienced practitioners, particularly those engaged in the representation of manufacturers, interstate motor carriers or other transportation entities. Despite the straightforward nature of the doctrine, Florida courts have applied negligence per se in a variety of ways. Lawyers engaged in the defense of a case in which a statutory or regulatory violation is alleged as the basis for a plaintiff’s cause of action must thoroughly familiarize themselves with all of the intricacies of the application of the doctrine, in Florida or elsewhere. Close reading of the case law is necessary to avoid confusion, as the Supreme Court of Florida itself once acknowledged that the state’s law on negligence per se was “hardly crystal-clear.”5
Some years ago, one economist estimated the presence of a claim of violation of a statute or regulation giving rise to a negligence per se allegation results in a statistically significant increase in the success rate of plaintiffs’ cases, as well as in the average payout in different types of cases.6 In light of the doctrine’s growing complexity and the corresponding frequency with which it may be asserted, this paper underscores the basic principles of negligence per se and the differences in its application.
Negligence Per Se: What Is It?
The doctrine resists simple explanation. Florida, along with most jurisdictions, recognizes that certain elements must be proven in order to establish a claim sounding in negligence per se. These are:
- the defendant violated a certain statute or regulation;
- the plaintiff is of the class which the statute or regulation was intended to protect;
- the plaintiff suffered injury of the type the statute or regulation was designed to prevent; and
- with respect to some types of statutory or regulatory provisions, the violation of the statute or regulation was the proximate cause of the injury.7
Not all statutes are equal in determining the application of the negligence per se doctrine.8 Florida law recognizes two distinct classifications of negligence per se: (1) statutes imposing strict liability upon violators, i.e., those “designed to protect a particular class of persons from their inability to protect themselves”; and (2) statutes designed “to protect a particular class of persons from a particular injury or type of injury.”9 Perhaps the most striking difference between these two classifications, as will be discussed below, is the plain-tiff’s need to prove proximate cause.
Statutes Mirroring Strict Liability
In Tierney v. Black Bros. Co., the Court delineated three categories of statutes for purposes of analysis of the doctrine.10 Consistent with the first category of negligence per se, the Tierney Court distinguished the type of statutes which mirror strict liability — those “designed to protect a particular class of persons from their inability to protect themselves.”11 In such a scenario, Florida law allows negligence per se to “be pled as a theory if there is a violation of a strict liability statute or rule.”12 Perhaps the most common cases of this nature involve minor plaintiffs.13 Violations of such statutes where a plaintiff is a member of the protected class is sufficient to create a negligence per se cause of action.14
For example, in Newsome v. Haffner, the court considered whether a social host’s violation of the “open house party” statute established a sufficient cause of action under the theory of negligence per se when a minor was injured at an open house party as a result of a self-inflicted gunshot wound.15 The relevant statute makes it a criminal offense for an adult to host an open house party where alcoholic beverages or controlled substances are possessed or consumed, the adult knows of such activity and the adult fails to prevent such activity from occurring.16 The court explained that the statute was designed to protect minors from the dangers that could occur since minors are “too immature to appreciate the potential consequences.”17 The court held “a cause of action in negligence [per se] is created when a penal statute is designed to protect a class of persons, of which the plaintiff is a member, against a particular type of harm.”18 Similarly, in Bryant v. Jax Liquors,19 the defendant sold alcohol to two minors despite a Florida statute making it a crime to engage in such activity. The statute was passed to “prevent the harm that can be caused by one of immaturity imbibing such liquors.”20 Because the statute was designed to protect minors who lack the ability and maturity to protect themselves, the court held a violation of such a statute constituted negligence per se.21
In this type of case, a plaintiff’s negligence is not a defense; thus, a defendant is prohibited from alleging comparative negligence against the plaintiff.22 Perhaps even more importantly, plaintiffs are not required to prove proximate cause.23 Proximate cause “is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.”24 The reasoning behind this principle is, as explained in Bald-ridge v. Hatcher, that the act which violates the statute or regulation “is said to be the act from which the injury follows as the foreseeable consequence. This places causation at an antecedent point . . . .”25 Put more succinctly, “[v]iolation of such a statute obviates any need for proximate cause proof.”26 Although the burden of proving proximate cause is discharged under this category, a plaintiff must still prove that she or he is a member of the class the statute in question was designed to protect, and the injury was of the type the statute was designed to prevent.27
Protecting a Particular Class from a Particular Injury
Tierney v. Black Brothers Co. sets forth a second type of statute giving rise to negligence per se: one which “establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”28 Because both categories of negligence per se require the plaintiff to establish that she or he is a member of the class that the statute in question was designed to protect, the most important distinction between these categories of statutes is that under the second category, a plaintiff must prove proximate causation. In deJesus v. Seaboard Coast Line R.R. Co., the court pointed out that, under this type of statute, a violation “does not necessarily mean there is [a] ctionable negligence.”29 A plaintiff must also establish “that he is of the class the statute was intended to protect, that he suffered injury of the type the statute was designed to prevent, and that the violation of the statute was the proximate cause of his injury.”30
Cases involving this additional class of negligence per se include Reliance Elec. Co. Haughton Elevator Division v. Humphrey.31 There, the statute required that the owner of an elevator, or a properly appointed agent, was responsible for its safe operation and proper maintenance.32 Although the precise nature of the alleged incident and resultant injuries were not discussed, the court held that a violation of the statute constituted negligence per se “when the statute ‘establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.’”33
Similarly, in Stephen v. L.P. Evans Motors of West Palm Beach, Inc.,34 two thieves stole an automobile, which the defendant shipping line later transported to Haiti without the statutorily required paperwork. The court held that failing to abide by the statute by transporting the automobile without the statutorily required paperwork was negligence per se since the purpose of the statute was to protect vehicle owners from the loss of their vehi-cles.35 Applying the second category of the negligence per se analysis set forth in Tierney, the Stephen court analyzed the proximate cause issue to determine whether there was a negligence per se violation and held the defendant’s breach of his statutorily imposed duty “directly and in natural and continuous sequence produced the damage incurred by the plaintiff.”36
Evidence of Negligence
There are of course myriads of other statutes governing some aspect of life in modern society. As set forth by the Supreme Court of Florida, “Violations of statutes, other than those imposing a form of strict liability, may be either negligence per se or evidence of negligence.”37 The general rule is that a violation of statutes or controlling regulations which only seek to “[protect] the public at large” are solely prima facie evidence of negligence.38 0
Allegations of Occupational Safety and Health Administration (“OSHA”) violations, for example, are always troublesome. Again, counsel responsible for the defense of these types of claims must be keenly aware of the law in the particular jurisdiction, as the law differs from state to state. Some states view evidence of such violations as requiring a negligence per se instruction, while others, such as Florida, consider such violations as merely evidence of negligence, which may be rebutted by the defendant.41 Florida courts have repeatedly held OSHA violations are not treated as negligence per se.42
The real difficulty encountered in wading through the thicket of case law in this area involves the various gradations of the principle applied by the courts. For example, Florida courts and the courts of most jurisdictions hold that violation of a speed limit or other traffic ordinance by a motorist is not negligence per se.43 Rather, it is viewed as evidence of negligence which can be taken into account by a jury along with all the other facts and circumstances of the case.44 Likewise, allowing a puddle to exist at a gasoline station, which theoretically violated the statute governing the general operation of such stations, and violations of an ordinance requiring handrails on staircases, have been held to be merely evidence of negligence and not negligence per se.45
Violations of some statutes and regulations, however, fashion more than mere evidence of negligence by creating a cause of action sounding in true negligence per se. This occurs when the statute or regulation is penal in nature, designed to protect a particular class of persons, of which the plaintiff is a member, against a particular type of harm.46 One example was discussed in Golden Shoreline Ltd. Partnership v. McGowan,47 in which an elevator fell down its shaft for some distance, injuring the occupant plaintiffs. The court held that the applicable Florida statute, which provided that the elevator owner was responsible for the safe operation and proper maintenance of the elevator, established a duty to protect those persons using elevators from injury resulting from poor maintenance of the elevator.48 Likewise, in Concord Florida, Inc. v. Lewin, the court held that a violation of a county fire provision and safety code mandated a negligence per se jury instruction because the provision was “designed to protect a particular class of persons (patrons within a building) from a particular type of injury (burns and smoke inhalation caused by fire to that building).”49 The court also noted the provision was penal in nature because the provision imposed a fine and/or imprisonment upon violators of the statute.50
Even in these types of cases, in addition to the statutory violation, plaintiffs must still prove they are of the class the statute was intended to protect, they suffered injury of the type that the statute was designed to prevent, and that the violation of the statute was the proximate cause of injury.51
Some cases describe statutes of this type as creating a species of strict liability. This concept of strict liability as it relates to negligence per se is quite different from that applicable in a products liability context as addressed in the Restatement (Second) of Torts. Section 402A of the Restatement (Second) of Torts provides the rule of strict liability as:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.52
In the context of negligence per se, however, courts’ application of “strict liability” approaches absolute liability, especially in the sense that comparative negligence on the part of plaintiff is not a defense.53 Similar to the products liability context, the concept of strict liability, as it relates to negligence per se, essentially eliminates the plaintiff’s burden of proving specific acts of negligence by the defendant.54 The Supreme Court of Florida has reasoned, “[s]trict liability means negligence as a matter of law or negligence [per se], the effect of which is to remove the burden from the user of proving specific acts of negligence.”55 These circumstances are presented when the statute is designed to protect a particular class of persons from their inability to protect themselves. For example, early cases involving allegations of violations of child labor laws, or sales of firearms to minors in violation of a statute prohibiting such, have held these types of statutes impose this type of strict liability.56
Adding to the complexity of this area of the law is the fact that statutory and case law in many jurisdictions speak of “unexcused” violations of the statute, ordinance or regulation in question. In these jurisdictions, if the defendant violated the statute and the violation was a cause-in-fact of some injury to the plaintiff, the only defense is to prove, by a preponderance of the evidence, that the violation was excused.57
Florida courts have repeatedly held in accordance with the Restatement (Second) of Torts that an exception exists where compliance with a statute is impossible, or “where noncompliance is excusable.”58 Similarly, the Restatement (Second) of Torts § 288A provides that a violation of a statute or regulation may be excused when “[the actor] neither knows nor should know of the occasion for compliance . . . [and] he is unable after reasonable diligence or care to com-ply.”59 In cases such as these, the mere fact that the defendant was exercising due care in violating the statute is irrelevant unless that due care rises to the level of an excuse.60
The opportunities for negligence per se allegations being raised against defendants in a variety of circumstances have multiplied in recent years, due at least in part to the expanding regulatory activities at all levels of government. Given the advantage provided to plaintiffs’ counsel in such cases, it is hardly surprising that recent findings have revealed the presence of a claim of violation of a statute or regulation giving rise to a negligence per se allegation results in a statistically significant increase in the success rate of plaintiffs’ cases and the average payout in different types of cases.61 It would be even less surprising to find that plaintiffs’ success rate and average recovery in these types of cases have risen even more in recent years. As such, these are some of the most challenging cases to confront corporate and outside counsel, and call for thoughtful analysis and robust defense.
Originally published in The Trial Advocate Vol. 39 No. 1 (2020). Used with permission
1See Hoskins v. Jackson Grain Co., 63 So. 2d 514, 515 (Fla. 1953).
2 See Paul Yowell, Judicial Discretion in Adopting Legislative Standards: Texas’s Solution to the Problem of Negligence Per Se?, 49 Baylor L. Rev. 109, 110 (1997).
3 The reasonableness standard analyzes whether an individual acted or failed to act “as an ordinary reasonably prudent person would have acted under the same or similar circumstances.” § 768.13(2)(A), Fla. Stat. (2019).
4 See Sloan v. Coit Int’l Inc., 292 So. 2d 15, 17 (Fla. 1974) (describing the statutory duty of care as “akin to strict liability . . . .”); see also Aaron D. Twerski, Negligence Per Se and Res Ipsa Loquitur: Kissing Cousins, 44 Wake Forest L. Rev. 997 (2009). See “Strict Liability,” below, regarding this characterization.
5 deJesus v. Seaboard Coast Line R.R. Co., 281 So. 2d 198, 200 (Fla. 1973). The extent to which Florida’s law in this regard was clarified by that decision and following cases will be discussed below.
6 See W. Kip Viscusi, Product Liability and Regulation: Establishing the Appropriate Institutional Division of Labor, 78 The Am. Econ. Rev. 300 (1988); see also Connor Karen, Parallel State Duties: Ninth Circuit Class Actions Premised on Violations of FDCA Reporting Requirements, 11 Advance 159, 162 (2017) (“Application of the negligence [per se] doctrine seems to render these potential cases much easier to win for plaintiffs.”); Barry L. Johnson, Why Negligence Per Se Should Be Abandoned, 20 N.Y.U J. Legis. & Pub. Pol’y 247, 268 (2017) (“This exponential growth in positive law alters the calculus for negligence [per se].”) (citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 14 cmt. d (2010) (recognizing “that the significance of negligence [per se] ‘has expanded in recent decades, as the number of statutory and regulatory controls has substantially increased.’”)).
7 See Restatement (Second) of Torts § 286 (1965); Restatement (Third) of Torts: Liability for Physical and Emotional Harm, §§ 14, 15; compare Tamiami Gun Shop v. Klein, 116 So. 2d 421, 422 (Fla. 1959) with Hoskins v. Jackson Grain Co., 63 So. 2d 514, 515 (Fla. 1953).
8 deJesus, 281 So. 2d at 200; Reliance Elec. Co., Haughton Elevator Div. v. Humphrey, 427 So. 2d 214, 214 (Fla. 4th DCA 1983).
9 Humphrey, 427 So. 2d at 214; Golden Shoreline Ltd. P’ship v. McGowan, 787 So. 2d 109, 111 (Fla. 2d DCA 2001).
10 Tierney v. Black Bros. Co., 852 F. Supp. 994 (M.D. Fla. 1994) (applying Florida law).
11 Id. at 1000; deJesus, 281 So. 2d at 201.
12 Langbehn v. Pub. Health Trust of Miami-Dade City, 661 F. Supp. 2d 1326, 1342 (S.D. Fla. 2009).
13 E.g., Tamiami Gun Shop v. Klein, 116 So. 2d 421 (Fla. 1959) (involving the unlawful sale of a firearm to a minor); Baldridge v. Hatcher, 266 So. 2d 112 (Fla. 2d DCA 1972) (involving an underage plaintiff employed to operate power machinery).
14 Newsome v. Haffner, 710 So. 2d 184, 186 (Fla. 1st DCA 1998).
15 Id. at 184.
16 Id. at 185 (citing § 856.015, Fla. Stat.).
19 352 So. 2d 542, 543 (Fla. 1st DCA 1977).
22 Eckelbarger v. Frank, 732 So. 2d 433, 436 (Fla. 2d DCA 1999).
23 See Hurd v. Munford, Inc., 378 So. 2d 86, 89 (Fla. 1st DCA 1979) (Ervin, J., concurring and dissenting); Baldridge, 266 So. 2d at 113; Tierney, 852 F. Supp. at 1000.
24 McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992).
25 Baldridge, 266 So. 2d at 113.
26 Tierney, 852 F. Supp. at 1000 (citing Hurd, 378 So. 2d at 89).
28 Id. (citing deJesus, 281 So. 2d at 201).
29 281 So. 2d at 201.
30 Id.; Torres v. Offshore Prof’l Tour, Inc., 629 So. 2d 1at).
31 427 So. 2d 214 (Fla. 4th DCA 1983).
32 Id. at 214-15.
33 Id. at 214; accord Davis v. Otis Elevator Co., 515 So. 2d 277 (Fla. 5th DCA 1987), in which the refusal to give a jury instruction on negligence per se was held to be error.
34 417 So. 2d 778, 779 (Fla. 3d DCA 1982). Id.36 Id. at 780.
37 deJesus, 281 So. 2d at 201 (emphasis added).
38 Langbehn, 661 F. Supp. 2d at 1342; see also Lingle v. Dion, 776 So. 2d 1073, 1077 (Fla. 4th DCA 2001) (holding a violation of a statute “regu-lat[ing] the medical practice . . . provid[ing] for disciplinary actions” did not rise to the level of negligence per se because the statute did “not purport to give any protections to any particular class of people beyond the public at large”).
39 deJesus, 281 So. 2d at 201.
40 See id. (“Proof of violation of a traffic ordinance is prima facie evidence only of ‘negligence’; proximate cause and other elements of actionable negligence must be proven independently.”).
41 See Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1, 3 (Fla. 4th DCA 1988).
42 See id.; Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So. 2d 417 (Fla. 3d DCA 1985); Jimenez v. Gulf & Western Mfg. Co., 458 So. 2d 58 (Fla. 3d DCA 1984).
43 See deJesus, 281 So. 2d at 200.
44 See id.
45 See Chevron U.S.A., Inc. v. Forbes, 783 So. 2d 1215 (Fla. 4th DCA 2001); Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So. 2d 565, 565 (Fla. 1st DCA 1994).
46 Newsome v. Haffner, 710 So. 2d 184, 186 (Fla. 1st DCA 1998).
47 787 So. 2d 109, 110 (Fla. 2d DCA 2001).
48 Id. at 111.
49 341 So. 2d 242, 246 (Fla. 3d DCA 1976).
51 For another phrasing of negligence per se criteria, see Tierney, 852 F. Supp. at 999-1000.
52 Restatement (Second) of Torts § 402A (1965); see West v. Caterpillar Tractor Co., 336 So. 2d 80, 90 (Fla. 1976).
53 Eckelbarger v. Frank, 732 So. 2d 433, 436 (Fla. 2d DCA 1999).
54 Small v. Amgen, Inc., 134 F. Supp. 3d 1358, 1366 n. 3 (M.D. Fla. 2015).
55 West, 336 So. 2d at 90.
56 E.g., Tamiami Gun Shop, 116 So. 2d 421; Baldridge, 266 So. 2d 112.
57 Restatement (Second) of Torts § 288A(2)(b-c) (1965).
58 Ivaran Lines, Inc. v. Waicman, 461 So. 2d 123, 125, 126 (Fla. 3d DCA 1984) (holding “violation of a statute or regulation, whether deemed prima
facie evidence of negligence or negligence [per se], is excused where it appears without dispute that compliance with the statute is impossible even in the exercise of reasonable diligence”); Thibault v. White, No. 5:16-CV-56-GRJ, 2017 WL 1902173, at *16 (N.D. Fla. Jan. 18, 2017) (finding where a defendant’s violation of a statute is the proximate cause of a plaintiff’s injury, a jury may still find the defendant’s noncompliance was excusable, rendering the violation only prima facie evidence of negligence).
59 Restatement (Second) of Torts § 288A(2)(b-c) (1965).
60 See Ivaran, 461 So. 2d 123 (holding “violation of a statute or regulation, whether deemed prima facie evidence of negligence or negligence [per se], is excused where it appears without dispute that compliance with the statute is impossible even in the exercise of reasonable diligence”).
61 See Viscusi, supra note 6.