Negligence and Negligence Per Se: A Comparison

Personal injury lawsuits are almost always based on claims for “negligence.” However, the law of negligence has many different applications and two distinct claims: negligence and negligence per se. Although you may understand what negligence is, you probably have never heard of negligence per se. Negligence per se can be thought of as a type of legal shortcut that allows those with injuries seeking compensation to win their case without proving as many elements.

Whether your case presents issues of negligence, negligence per se, or both is ultimately a determination for your lawyer to make. However, we are going to provide you with a basic background on each. The experienced personal injury attorney at The Henry Law Firm can speak with you, and discuss your case to determine which type of negligence could apply to your lawsuit.

What Is Negligence?

Legally negligence can be defined as the failure to use reasonable care, which has resulted in someone else sustaining injuries or non-economic or economic damages. Usually, the definition of what is deemed reasonable care will depend on the circumstances of your case. We can evaluate your case in full to help you identify how reasonable care would apply, but take a look at the brief overview of non-economic and economic damages from the American College of Surgeons below:

• Non-economic damages: Compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life.
• Economic damages: Compensation for objectively verifiable monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement, the economic value of domestic services, and loss of employment or business opportunities.

Additionally, what qualifies as reasonable will change according to the role a defendant played in an accident. It will also depend on the accepted standards of care that pertain to differing situations. Moreover, a jury can only deem a defendant negligent if it can be established that another reasonable individual or entity in the same position would have done the same thing.

What Is Negligence Per Se?

Now that you know what negligence is, we can look at what negligence per se is. The main difference is that negligence per se is a specific legal claim that centers around the violation of a particular law or rule. In a negligence per se claim, when a defendant violated a safety rule, the elements of duty and breach are established. 

Essentially, negligence per se denotes that an act is negligent because it violates the laws and rules put in place to protect the public. Laws that are involved in negligence per se cases are aimed towards protecting the public at large. For example, the law states a driver must stop at a red light. If the driver breaks this law and causes an injury, he is negligent per se – and the plaintiff doesn’t have to prove a duty or breach of that duty independently.  

That is the simple explanation of negligence per se. Although the duty of care and breach of that duty may be obvious, establishing negligence per se removes those elements from the analysis. 

It is important to note that negligence and negligence per se can often be included in the same lawsuit. Your lawyer will likely argue that the defendant’s conduct constituted both negligence and negligence per se. That doesn’t mean you will win double the recovery, but only if, for some reason, you cannot win on one claim – you may still win on the other.

How To Prove Negligence 

After exploring the difference between negligence and negligence per se, it’s essential to understand what you have to prove to establish negligence. If you cannot prove negligence, no other party would be liable for your injuries. The claim of negligence requires you to prove four basic elements: a duty of care, a breached duty of care, causation, and damages.

1. Duty Of Care

The first step in proving negligence is confirming that the person who caused your injuries owed you a duty of care. Whether you owe someone a duty of care depends on your legal relationship with that person. Below are a few examples of scenarios when someone is owed a duty of care based on a legal relationship with another individual.

• A grocery store owner owes its shoppers a duty of care with respect to keeping its store safe.
• We owe other drivers a duty of care to operate our vehicles safely when driven on the highway and other roads.
• Doctors owe their patients a duty of care to treat each patient within the standard of care for their industry.

It may seem pretty basic that we owe others a duty of care, but that is not always the case. For example, you do not owe a trespasser a duty of care on your property. Contrary to what some may believe, a trespasser cannot typically sue you if he trips and falls on a hazard on your property. We usually write because the law is complicated, and there are exceptions to almost every situation – that is why you need to consult with an experienced personal injury lawyer about crucial case details that build your claim, and what legal rights you may or may not have. 

2. Breached Duty Of Care

If someone owed you a duty of care, you need to prove that they breached the duty they owed you, such as:

• The grocery store owner breaches his duty of care by not cleaning up a spill in the aisleway.
• A driver breaches his duty of care by failing to stop at a red light.
• The doctor breaches her duty of care by failing to render care within the standard of that industry, like failing to take an x-ray when your presentation is consistent with a broken bone.

3. Causation

An individual’s breach of duty of care must be connected with the damages suffered. Essentially, you need to prove that a duty of care breach caused the injuries you sustained. If a driver runs a red light, he breaches his duty of care. But, if he does not cause a car crash, then there is no legal claim for negligence as he did not cause damages. Should you not prove that the accident was the direct cause of the injuries you sustained, you won’t be able to win your negligence claim.

4. Damages

To prove negligence, you must have sustained damages and measure your injuries. If you didn’t sustain any damages, you have no claim to seek compensation. Damages can take many forms, both economic and non-economic. Your claim will be valued at the number of injuries you prove. Although economic damages can be calculated based on bills, lost wages, out-of-pocket expenses, pain and suffering are subjective. The appropriate amount of damages for it is unique in each case.

Contact an Ohio Lawyer Today to Learn About Negligence

We know how difficult it can be to fully comprehend the difference between negligence and negligence per se, which is why we want to help you. With assistance from our qualified Ohio lawyer, all facts about your case will be examined so that we can establish which legal negligence theory applies to your lawsuit. Reach out at your earliest convenience so we can help you obtain compensation for your injuries and monetary losses.