In Pittsburgh, as is the case across Pennsylvania Courts, injured parties have to prove three legal points in a personal injury case: negligence, causation and damages. Pennsylvania court rooms can be a tough place for an injured person. In many cases, the plaintiff must first establish that the defendant was negligent, before even worrying about whether the negligence caused the harm complained of. Because the burden of proof is on the plaintiff, injured parties in Pennsylvania need to use all tools available to them. Many times in auto cases, negligent security cases, dram shop cases and assault and battery claims (to name a few) the defendant can be shown to have violated a law as a result of their actions. When this happens the concept of negligence per se comes into play and can strengthen a case.
Pennsylvania has adopted Section 286 of the Restatement of Torts Second. This Restatement provides: “The Court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment … whose purpose is found to be
(a) exclusively or in part to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Pennsylvania’s adoption of Section 286 has been affirmed in multiple decisions. See, e.g., Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987). See, also, Shamnoski v. PG Energy, 579 Pa. 652, 858 A.2d 589, 601-02 (Pa. 2004) (observing that statutes reflecting a legislative judgment that a failure to engage in certain specified conduct constitutes negligence, may provide the duty of care in finding negligence per se), citing Beaver Valley Power Co. v. National Engineering & Contracting Co., 883 F.2d 1210 (3d Cir. 1989); Young v. Pa. Dept. of Transp., 560 Pa. 373, 744 A.2d 1276, 1279 (Pa. 2000) (noting that negligence per se is not found where a statute does not provide specific guidance on the duty of care owed by a defendant); Jinks v. Currie, 324 Pa. 532, 188 A. 356, 358 (Pa. 1936) (finding negligence per se based on a motor vehicle statute positively prohibiting specific conduct, and describing prior case law on negligence per se interpreting similar statutes).
Here is an example of how negligence per se could be established in a car crash case. The plaintiff is driving down the road. They come around a bend only to find another vehicle coming at them from the opposite direction in their lane. The other vehicle was trying to pass a car, crossed a double line to do so, and was unable to pass back into the correct lane before striking the plaintiff. There are laws in Pennsylvania that forbid passing on double lines and driving in the opposite lane.
In this scenario, the plaintiff can seek to hold the defendant negligent per se i.e. negligent as a matter of law for having violated two motor vehicle laws. The plaintiff can establish all four prongs of the negligence per se requirement. The law was designed to protect other drivers from the harm that would be expected from driving on the wrong side of the road and plaintiff most certainly incurred the exact type of harm contemplated.
Once these four points are established, the plaintiff can ask the court (never mind the jury) to find that the defendant was negligent as a matter of law. When the judge does this, the plaintiff has just moved a third of the way closer to winning their case.
I will discuss other aspects of negligence per se in future posts.
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