The negligence per se approach differs significantly from either of the other two approaches to statutory violations, in that the court rather than the trier of fact actually determines whether the particular statutory standard will apply as the standard for determining the conduct of the R.P.P. If the court determines that any given statute is applicable, then the negligence per se approach simply mandates as a matter of law that any violation of such statute will constitute "n"egligence. The trier of fact in such situations is only then permitted to ascertain whether the statute in question was in fact violated, and not whether the particular violation was otherwise reasonable under the circumstances. The negligence per se is the preferred approach to statutory violations taken today by a majority of American jurisdictions in negligence cases.

The most difficult problem in actually applying the negligence per se approach involves the question of whether or not such statutory violations may still be excused in appropriate circumstances. Unlike either of the other two approaches (both of which allow the trier of fact to excuse statutory violations where it is otherwise reasonable to do so), the negligence per se approach permits only the court (and not the trier of fact) to make such determinations. Thus, under the negligence per se approach, IF the statutory violator offers some excuse or justification for violating a statutory standard, the court in deciding whether or not to adopt a "criminal" (penal) statute as the standard of care in a negligence case can simply choose not to apply the statutory standard at all (often because of the existence of some otherwise valid excuse) by utilizing the traditional two-prong analysis. It is only in those cases where the alleged statutory violation involves a "civil" statute that the court will be denied its discretion and mandated to apply the statutory standard of care as negligence per se, regardless of the existence of some excuse or not. In these cases, the discretion ordinarily exercised by the court when excusing a statutory violation has been simply removed and replaced by that of the legislature which has by the enactment of the "civil" statute mandated compliance with the statutory standard. Of course, this also explains why there are so few truly "civil" statutes when compared against the vast numbers of "criminal" (i.e., penal or safety) statutes. Instead, in the overwhelming majority of statutory negligence cases (most of which involve violations of "criminal" statutes), the court retains its discretion in deciding whether or not to invoke the doctrine of negligence per se. Thus, just as in so many other areas of Tort law, the ultimate distinction between the negligence per se approach and the other two approaches to statutory violations in negligence cases relates solely to the basic philosophical question of whether such decisions are more appropriately made by the courts as a matter of law, or by the triers of fact on a case by case adjudication.

 

Copyright 1999 by Edward C. Martin
Last modified: 10/08/01