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Osborne v. McMasters

    Brief Fact Summary. Defendant sold Plaintiff poison without labeling it as such. Not knowing it was poison, Plaintiff consumed it and died.

    Synopsis of Rule of Law. When a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for which the statute was designed to protect or benefit.

    Facts. Defendant’s clerk in his drugstore sold to Plaintiff a deadly poison without labeling it as “Poison” as required be statute. Not knowing it was poison, Plaintiff consumed it and died. Plaintiff sued Defendant for negligence. Defendant appealed.

    Issue. Is Defendant negligent for the breach of duty imposed by statute?

    Held. Yes. Judgment affirmed.
    * In this case, Defendant was in violation of Section 329 of the Penal Code and Section 14, c. 147, Laws 1885. The purpose of these statutes was to protect the public against the dangerous qualities of poison. When a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for which the statute was designed to protect or benefit. In this case, Plaintiff is a consumer of the poison. The statute was intended to protect Plaintiff, and Defendant violated the statute. Thus, Defendant is liable to Plaintiff for the breach of duty imposed by the statutes.
    * Negligence is the breach of legal duty. It is immaterial whether the duty breached is imposed by statute or by common law. The only difference is that a breach of duty imposed by common law is to be determined by common law principles. A breach of duty imposed by statue constitutes conclusive evidence of negligence, or negligence per se. In this case the statutes established a fixed standard by which the fact of negligence may be determined. In the breach of the duty imposed by statute, Defendant is negligent per se.

    Discussion. Negligence can be a breach of a duty imposed by common law or a breach of a duty imposed by a statute. A breach of a duty imposed by statute is called negligence per se, it is conclusive evidence of negligence. However, to recover under negligence per se, the legislature must have intended to protect Plaintiff from an injury that they had contemplated when passing the statute, and Plaintiff must be in the group of people that the legislature intended to protect.


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