However, as Holmes’s maxim portends, increased experience with the negligence per se doctrine has led virtually all courts to soften this Draconian stance. Most courts have adopted one of the following approaches, which allow the jury to consider the violation of a statutory standard of care in determining negligence, but avoid making it automatically determinative.
The most common approach to violation of statute as negligence is reflected in §14 of the Third Restatement of Torts: Liability for Physical and Emotional Harm. That section provides as follows:
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
Under this provision, if an actor violates a relevant statutory standard of care, that violation will establish her negligence if no excuse is offered. Suppose, for example, that Bourjailly violates the school bus statute quoted above by passing a stopped school bus and hits Hellman, a student getting off the bus. Suppose also that Bourjailly offers no excuse for his violation (quite likely because he doesn’t have one). On these assumptions, the jury would be instructed that, if they find that Bourjailly violated the statute, they must find that he was negligent.
However, the Restatement recognizes that there may be legitimate reasons for violating a relevant statute. Thus, the violator will be entitled to offer evidence of an excuse for the violation. Section 15 of the Third Restatement recognizes the following categories of “excused violations”:
(a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
(d) the actor’s violation of the statute is due to the confusing way in which the requirements are presented to the public; or
(e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.