“Hunting for Statutes to Eliminate the Negligence Question”

Swift Currie attorney, Derek Goff, authored an article for WorkersCompensation.com discussing the assertion “negligence per se” by plaintiffs to lessen their burden to prove the first two elements of a negligence claim: duty and breach. Without the need to prove these two elements, Goff explained plaintiffs asserting negligence per se still need to establish causation and damages.

A recent Tennessee premises liability case, underscored the impact of negligence per se assertion, as the Tennessee Court of Appeals found that the builder of a townhome and the owner’s failure to install a full handguard in a stairway, which violated a building code, constituted negligence per se. This meant the plaintiff no longer needed to prove the owner owed a duty of care and breached it.

Goff went on to outline the factors that influence whether negligence per se applies to a situation, including:

• Whether the statute is the sole source of the defendant’s duty to the plaintiff.
• Whether the statute clearly defines the prohibited or required conduct.
• Whether the statute would impose liability without fault.
• Whether applying negligence per se would result in damage awards disproportionate to the statutory violation.
• Whether the plaintiff’s injury is a direct or indirect result of the statute’s violation.

To view the full article, you may click here.