Negligence Per Se in the Ocean of Ever-Changing Regulations
By: Derek Goff
Under normal circumstances, a plaintiff bringing a negligence claim must prove: (1) the defendant had a duty to the plaintiff; (2) the defendant breached that duty; and the breach of this duty (3) proximally caused (4) damages. When the defendant violates a statute or ordinance which was created to prevent the type of harm that occurred, the plaintiff may bring a claim for “negligence per se,” obviating the first two elements of a negligence claim. In determining whether a defendant was negligent per se, courts must consider whether the plaintiff “falls within the class of persons the statute or ordinance was meant to protect” and “whether the harm complained of was the harm the statute was intended to guard against.” Mercy Housing Georgia III, L.P. v. Kaapa, 368 Ga. App. 270, 274 (2023).
So long as the plaintiff can establish the statute or ordinance was violated and the statute or ordinance was created to prevent the type of harm that occurred, the plaintiff’s requirement to show an existence of the defendant’s duty to the plaintiff and the defendant’s breach of that duty is satisfied as a matter of law. For example, traffic violations of statutory motor vehicle codes that result in an accident may support a negligence per se claim. Antwanella Hall v. United States of America, 2024 WL 4355184 (U.S.D.C., N.D. Ga. Sept. 30, 2024). The plaintiff is still required to demonstrate a causal connection between the violation of the statute and the plaintiff’s damages.
Claims for negligence per se do not only exist in instances of violations of statutes and ordinances but can also arise due to violations of certain regulations. For example, the owners of Section 8 senior housing units that fail to provide tenants with emergency call devices mandated by HUD regulations may be negligent per se. Mercy Housing v. Kaapa, supra. In some instances, even building code violations might support a claim for negligence per se. Champion Windows of Chattanooga, LLC v. Edwards, 326 Ga. App. 232 (2014).
Some experts have found total regulatory restrictions increased by nearly 20 percent from 1997 to 2016.1 Total regulations targeting each industry in the United States have reached over one million. Not only are regulations growing, but they are also rapidly changing. Regulations are often passed by agencies, and the regulations are without direct legislative oversight. Thus, it becomes nearly impossible for many defendants to ensure no regulation is violated in their day-to-day conduct.
The potential application of negligence per se to regulatory violations leads smart plaintiffs’ attorneys to search for statute, ordinance and regulation violations to remove the question of standard of care from the jury.
Arguably, regulations that do not provide a basis for civil liability should not give rise to a claim for negligence per se. Defendants have successfully argued regulations do not carry the force of law because they are agency regulations rather than legislative enactments, and therefore, cannot provide a valid foundation for a negligence per se theory. For example, Nevada courts have held “a violation of administrative regulations cannot support a negligence per se theory.” Manley v. MGM Resorts Int'l, 2024 WL 4374059 (U.S.D.C., D. Nev. Oct. 2, 2024). Therefore, defense counsel may defeat such claims by arguing negligence per se only applies to the violation of mandatory regulations which specifically give rise to civil liability.
1 Regulatory Accumulation and Its Costs (https://www.mercatus.org/research/policy-briefs/regulatory-accumulation-and-its-costs).
Attorney Contact Info
Derek Goff
derek.goff@swiftcurrie.com
205.314.2408