The Trouble with Negligence Per Se
84 Pages Posted: 17 Sep 2009
Date Written: September 16, 2009
Abstract
The trouble with negligence per se doctrine in the United States is that - like a house built on soft and shifting sands - it is structurally unsound and lots of bother to maintain. It is time to tear the unstable edifice down, reinforce the foundation, and build anew. Nonprescriptive, statute-like enactments are, by definition, not aimed at civil tort actions. But, prevailing negligence per se doctrine in America utilizes an intent-based approach of whether or not such laws were designed to protect a particular class of persons from a particular kind of harm. Not only is prevailing negligence per se doctrine unsystematic, vague, muddled and wrongheaded as a result, it is inefficient and confusing for judges, lawyers and jurors, alike. This Article proposes a new approach to negligence per se by urging courts to consider a number of steps. They include rescinding prevailing negligence per se doctrine; announcing a baseline for the relevant common law standard of reasonable care, as discerned and applied by a jury; crafting a clear statement of the rule of interpretation whereby statute-like enactments will not be utilized as binding tort standards unless they unmistakably include those standards in the actual text of the enactment; and, finally, allowing violations of nonprescriptive, statute-like standards to be considered by the jury - along with all the other evidence in the case - as mere evidence of lack of due care. But, the Article goes on to argue that courts should retain the judicial power to borrow nonprescriptive, statute-like enactments, on a very selective basis, if astute policy analysis reveals substantial advantages in discrete policy areas for utilizing a more specific standard of care.
Keywords: torts, jurisprudence, negligence per se
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