What Is the Difference Between Negligence and Negligence Per Se?
Ryan Zavodnick | January 16, 2023 | Personal Injury
The primary difference between negligence and negligence per se is the presumption the at-fault party breached their duty of care. That presumption can sometimes help an injured vehicle win a personal injury case. First, let’s review what we need to prove for a negligence claim to compare it to a negligence per se claim.
Defining Negligence in a Philadelphia Personal Injury Case
Negligence is failing to act with reasonable care. For example, a person adjusting their GPS in a school zone might be considered negligent.
A reasonable person using ordinary caution would understand they could cause a crash that injures a child because they were distracted. Jurors decide negligence based on what a reasonable person would have done in a similar situation.
Proving negligence for a personal injury claim requires you to prove the following legal elements:
- Duty of Care – The party being accused of causing an accident or injury owed the victim a legal duty of care
- Breach of Duty – The accused party’s conduct breached the duty of care
- Causation – The breach of duty was the proximate and direct cause of the victim’s injuries
- Damages – The victim sustained damages because of the at-fault party’s breach of duty
In our example, the driver owed others on the road a duty of care to take reasonable steps to avoid an accident. Instead, they breached the duty of care because he was distracted in a school zone.
The driver did not see a child crossing the road at the crosswalk because they were looking down instead of looking at the road. As a result, the driver caused an accident that injured a child.
A reasonable person could foresee that distracted driving in a school zone could cause an accident. Therefore, when the driver decided to adjust his GPS while driving, they breached their duty of care.
How Is Negligence Per Se Different From Negligence?
When you claim negligence per se, the jurors presume that the at-fault party breached the duty of care. However, you must show that the defendant violated a law designed to protect the public, and that the law was designed to prevent the type of harm caused by the at-fault party.
In our example above, let’s say the driver had been drinking alcohol instead of adjusting the GPS. Pennsylvania DUI laws make it illegal to drive under the influence of alcohol or when your BAC is above the legal limit. Drunk driving laws in Pennsylvania are designed to prevent and protect the public from DUI accidents.
Because the driver was driving under the influence and caused the accident, the jurors can presume that the driver breached their duty of care. However, it is a rebuttable presumption. The driver has the burden of proving that his conduct did not breach the duty of care.
Proving the Remaining Elements for a Negligence Per Se Claims
Even though there is a presumption that the at-fault party breached the duty of care, the injured party must prove causation and damages to win the case. Causation is why the injury or accident occurred. For example, had it not been for a driver failing to yield the right of way, the accident would not have occurred.
Being drunk does not mean the driver caused the accident. Instead, it means the driver failed to use reasonable care, thereby breaching the duty of care.
The victim must prove that the driver’s conduct caused the accident. For example, the driver failed to stop for a red light or failed to yield the right of way to pedestrians in a crosswalk. Had it not been for the driver’s actions, the victim would not have been injured.
The victim must also prove they sustained damages because of the at-fault party’s conduct. For example, the person sustained economic damages, including lost wages and medical bills. They also sustained physical injuries, which caused pain, suffering, and other non-economic damages.
Comparative Negligence Applies in Negligence Per Se and Negligence Cases
If a person is partially to blame for causing their injuries, their compensation can be reduced under Pennsylvania’s contributory fault laws. This rule applies in both negligence and negligence per se cases.
For example, if the victim is 30% at fault for the cause of a car crash, they are only entitled to 70% of the jury’s award for damages. However, Pennsylvania has a 51% bar for comparative negligence. Therefore, if the victim is over 51% at fault for causing their injuries, they are barred from receiving any compensation for their damages.
Therefore, insurance companies like to use contributory fault allegations to limit their liability for claims. The statements you make at an accident scene and to an insurance adjuster could impact how much you receive for your case.
Instead of talking to the insurance company, refer the company to your Philadelphia personal injury lawyer. An attorney handles all matters related to the insurance company and your personal injury case to protect your right to fair compensation for an injury claim.
Contact Our Personal Injury Law Firm in Philadelphia Today To Get Help With Your Case
To learn more and get the help you deserve, call Zavodnick & Lasky Personal Injury Lawyers at (215) 875-7030 or contact us online.
You can also visit our law firm at 123 S Broad St #1220, Philadelphia, PA 19109.