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IX. Negligence Per Se

This section explores yet another way in which the too-often vague negligence standard of reasonable behavior can be supplemented, with the help of a relevant statute: negligence per se. In those rare (and happy?) occasions in which a rule of behavior is laid down by public authorities — for the purpose of safety, and perhaps as part of the criminal law — we see courts willing to adopt the law itself as the standard of care. When this is done, it does not merely provide a basis for inference as res ipsa does, but rather substitutes for the standard itself. If the conditions for negligence per se are met and the law can be shown to have been flouted, the defendant is liable. In a counterpart configuration, if contributory negligence on the part of the plaintiff is claimed by the defendant and established by the plaintiff’s disregard of a statute, the plaintiff’s case is lost. To be sure, not violating a statute typically does not establish the absence of negligence — the common law still exists typically to set its own floor for acceptable behavior.

The cases here provide good examples of when the doctrine works — and when exceptions to its application are sought and granted.