What Is the Difference Between Negligence and Negligence Per Se?

January 26, 2024 | Personal Injury

What Is the Difference Between Negligence and Negligence Per Se?

When it comes to bringing a personal injury claim, it is crucial to understand the difference between negligence and negligence per se. These terms may sound similar, but they represent distinct legal theories for bringing a personal injury claim. 

In this blog post, we’ll explore the differences between negligence and negligence per se, shedding light on when and how these theories apply in personal injury cases.

What Is Negligence?

Negligence refers to the failure to exercise reasonable care, resulting in harm to another person. These claims differ from intentional torts, such as assault and battery. Most personal injury claims are based on negligence. 

Elements of a Negligence Claim

To establish a negligence claim, a plaintiff has the burden of proving four elements: duty of care, breach of duty, causation, and damages.

  • Duty of Care: The plaintiff must establish that the defendant owed a duty of care, or a legal duty, to the plaintiff. Most individuals owe a general duty of care to act as a reasonable person would under the circumstances. This standard is externally determined, often by a jury. In cases of professional malpractice, this standard is based on expectations for similarly licensed individuals.
  • Breach of Duty: The plaintiff must then prove that the defendant breached that duty through their actions or inactions. For instance, drivers who are distracted while driving or surgeons who do not follow hygiene protocols may be breaching their duty of care.
  • Causation: Next, the plaintiff must show that the defendant’s breach of duty caused the plaintiff’s injuries. This includes both actual and proximate causation. Actual causation involves showing that the injury would not have happened if not for the defendant’s breach, and proximate causation requires showing that the breach would foreseeably result in the types of harm suffered by the plaintiff.
  • Damages: Finally, the plaintiff must show that they suffered actual damages or harm as a result of the breach. This can include physical, financial, and emotional injuries. These damages are the basis of compensation, so a plaintiff cannot bring a complete claim without a showing of damages.

All four of these elements must be proven in order to bring a successful negligence claim. If any of these elements is missing, an otherwise valid claim will be dismissed.

What Is Negligence Per Se?

Under the “negligence per se” theory, when a person violates a statute or regulation, it leads to an automatic finding of negligence. The elements are the same as negligence, but involve different assumptions and standards of proof. Unlike general negligence, negligence per se provides that one’s duty of care is breached based on the violation of a law. 

How Negligence Per Se Varies From Negligence

Negligence per se cases point to a different standard for duty of care than negligence cases. In negligence cases, the duty of care is based on what a “reasonable person” would do under similar circumstances. However, in negligence per se cases, the duty is defined by an existing law. Thus, the defendant’s breach of duty is assumed from a violation of the law.

Under a negligence per se theory, a plaintiff must demonstrate that the defendant violated a law. The plaintiff must also demonstrate that the law was meant to protect people like the plaintiff (similar circumstances or population). The other elements are the same as negligence. The plaintiff must show that there were injuries and that the violation caused those injuries.

Example of Claim Under a “Negligence Per Se” Theory

Negligence per se claims can arise in car accidents. Drivers have a duty to follow traffic laws in order to ensure the safety of other drivers, passengers, and pedestrians. When a driver runs a red light, they violate traffic laws. If running a red light causes a crash, it will be assumed that running the red light constitutes a breach of their duty to follow traffic laws.

Consult With an Experienced Personal Injury Lawyer

In summary, while negligence and negligence per se both relate to fault in personal injury cases, the key difference lies in the source of the duty. Negligence requires a broader evaluation of reasonable care, while negligence per se is based on the violation of a specific law.

Whether you’re pursuing a negligence or negligence per se claim, seeking legal guidance is crucial. If you have questions or need assistance with a personal injury case, contact George Salinas Injury Lawyers at (210) 225-0909 for a free consultation. We are here to help you navigate the process of bringing your personal injury claim.

George Salinas Injury Lawyers
6243 I-10 Ste. 955, San Antonio, TX 78201
(210) 225-0909