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Borrowing Standards of Care: Violation of Statute as Negligence


There are some good arguments that a violation of a statute should be treated as “negligence per se,” that is, negligence in itself. Where the legislature has decreed that certain precautions must be taken, or that certain acts should not be done, a person who violates the statute has ignored the standard of care established by the legislature. Arguably, reasonable people don’t do that.

In addition, if the jury is permitted to find that the defendant acted with due care, despite his violation of a statutory standard of care, the jury is being licensed to disregard the command of the legislature. Suppose, for example, that the jury finds that Updike was not negligent in failing to wear a helmet. Doesn’t this ignore the legislature, the voice of the people, which has barred such conduct? Shouldn’t the standard of conduct enforced by the courts be the same as that established by the legislature, so that court decisions in negligence suits will reinforce rather than contradict the policy of the legislature?

There is much logic to these arguments, but the negligence per se cases vividly illustrate Justice Holmes’s famous maxim, “The life of the law has not been logic; it has been experience.” O. W. Holmes, Jr., The Common Law I (Little, Brown 1881). Automatic adoption of general legislative standards has proved too rigid. While it may be generally true that the reasonable person obeys the law, it is not always true. In unusual circumstances, it may be reasonable to disregard the statute, as where a driver swerves across the center line to avoid a child in the street, or stops in a no-stopping zone to attend to a seriously ill passenger. In other cases, it may be impossible to obey the law, despite the best will in the world, as where blizzard conditions overwhelm efforts to keep a street clear. Imposing liability in cases like these, simply on the ground that the defendant violated the statute, would look more like strict liability than liability based on fault.

Another argument against automatic adoption of the legislative standard is that most statutes that establish standards of care say nothing about what role the legislative standard should play in a tort action for damages. Since the legislature has not provided that violation of the statutory standard of care automatically establishes negligence, it is fair to infer that courts have some discretion to “borrow” that standard selectively.

Last, it is doubtful that the legislature intended blind adherence to statutory standards regardless of the circumstances. Legislators tend to be practical people, and practical people recognize that there are circumstances in which the ordinary rules do not pertain. If asked, no legislator who voted for a statute requiring drivers to keep to the right would testify that she intended them to run down small children in order to fulfill the statutory command, or to smash into a stalled oil delivery truck.


Some early cases appear to hold that violation of a statutory standard of care always constitutes negligence per se. Under this approach, if the defendant violated the statute, the jury would be required to find her negligent, without regard to any excuse she might offer. One of the classic cases, Martin v. Herzog, 126 N.E. 814 (N.Y. 1920), might be read to stand for this position,[1] and early cases from other jurisdictions appear to agree. See, e.g., Decker v. Roberts, 3 A.2d 855 (Conn. 1939); O’Bannon v. Schultz, 169 A. 601 (Conn. 1933); cf. Zeni v. Anderson, 243 N.W.2d 270, 281 (Mich. 1976) (noting that the negligence per se rule bars evidence of excuse). Under this approach, the only way the defendant could avoid liability would be to show that the statute did not apply under the circumstances (see, e.g., Tedla v. Ellman, 19 N.E.2d 987 (N.Y. 1939)), or that the violation, while admittedly negligence, did not cause the plaintiff’s injury.

[1] [ft] However, even Martin, despite its strong language, intimated that the violation in that case established negligence per se because it was “wholly unexcused.” 126 N.E. at 815.

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