|negligence per se ||doctrine that provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case.|
|Factors Used for Determining the Propriety of Adopting a Statute as the Standard of Care ||Type of Harm, Plaintiff in Protected Cases, Licensing Statutes
|The judge must examine the statute in order to determine two things ||Whether the statute was designed to protect against the type of harm suffered by the plaintiff; Whether the class of persons designed to be protected by the statute includes the plaintiff.
|Type of Harm ||It is uncomplicated where the statutory purpose can be easily discerned from the language of the statute or from its clear legislative history. |
|Plaintiff in Protected Cases ||A judge must also determine that the plaintiff falls in the class intended to be protected by the statute. Sometimes, the scope of the protected class is uncertain.
|Licensing Statutes ||The purpose of licensing statutes is to protect the public from those lacking requisite skill.|
|Effects of Non-Adoption of a Statute ||The judge's determination that the proffered statute should not be adopted as the standard of care (because it does not protect the plaintiff, protect against this type of harm, or because it is otherwise inappropriate)|
|Effects of Adoption of the Statute and Statutory Violation ||The statute replaces the usual reasonably prudent person standard of care.|
|The Role of Excuse ||Excused statutory violations|
|Acceptable excuses ||a sudden emergency that is not of the actor's making; compliance would involve greater danger than violation; the actor neither knows nor should know of the occasion for diligence; the actor has some incapacity rendering the violation reasonable. |
|Negligence Per Se and Children ||There is an inherent conflict between the standard of care usually applied to children, which compares them to other children of the same age, experience and intelligence, and the statutory standard that is a product of the negligence per se doctrine.|
|Compliance with Statute ||compliance with a statute is merely relevant evidence of reasonableness; Compliance does not establish due care.
|Criticism of the Negligence Per Se Doctrine ||One key criticism arises from the wide divergence between the impact of a statutory violation in the criminal context from that which it has in a negligence case.
|Negligence liability is imposed ||where the defendant engages in unreasonable risk creation, situations where the defendant creates risks that a reasonable person would not. |
|How is unreasonableness determined ||Many adhere to Judge Learned Hand's risk calculus looking at whether the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur.|
|Algebraic formula for the Hand formula ||If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B<PL|
|Probability ||Seeks to measure the likelihood of the harm-causing occurrence taking place; Although probability must be considered in relation to magnitude and burden, where there is a minuscule likelihood of harm it is doubtful that the defendant breached a duty.
|Magnitude of the Loss || looks at the likely harm flowing from the injury-causing event when it occurs; what a reasonable person would foresee as the likely harm; more serious the potential injury, the smaller the probability of harm needed for liability.|
|Burden of Avoidance ||An analysis of burden requires consideration of such things as the costs associated with avoiding the harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity. |
|Value of the Hand Formula
||While the jury is not instructed to consider the Hand formula factors, they reflect the kinds of things that a jury grapples with in determining reasonableness|
|Custom ||evidence that may be relevant to a jury's determination of breach of duty; to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry.|
|Deviation from Custom || a. If P can persuade the jury that there is a well-established and relevant custom, the jury may consider D's deviation from custom in its determination of breach of duty. (often considered powerful evidence)
|Compliance with Custom ||Usually admissible as evidence of D's lack of breach; Evidence of D's compliance with customary practice does not alter the standard of care nor does it conclusively establish D's lack of unreasonableness. |
| The Jury Role ||Where reasonable minds could disagree, the jury decides whether the defendant acted unreasonably. The notion (once favored by Justice Holmes) that courts should create standards of conduct to be used in similar cases has largely been repudiated|