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What Is the Difference Between Negligence and Negligence Per Se?

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What Is the Difference Between Negligence and Negligence Per Se?

Negligence claims are probably the most common types of claims in all of personal injury law. Negligence per se, by contrast, is less commonly asserted. Fundamentally, negligence per se is an abbreviated way of proving a negligence claim.

What Is Negligence?

A negligence claim can arise out of a car accident, a slip and fall accident, a product liability claim, or any other way that the human body might suffer an injury. Negligence is basically a fancy way of saying ‘carelessness.’ 

Duty of Care

Everyone is responsible for managing their affairs (driving, for example) in a manner that is reasonably calculated to avoid injuring others. This is the basic duty of care. 

People who enjoy the benefit of special training must bear a higher burden. A doctor treating a patient, for example, must meet a much more stringent duty of care than an untrained ‘Good Samaritan’ who renders first aid at the scene of a car accident.

Breach of Duty

You breach your duty of care when you fail to meet its demands. There are two ways you can breach your duty of care—by doing something you should not have done (by commission) or by not doing something you should have done (by omission). 

An example of negligence by commission would be a doctor performing unnecessary surgery on a patient. An example of negligence by omission would be failing to use your turn signal before you make a turn. 

Once you have established a duty of care and breach of duty, you have established negligence. Negligence alone, however, is not enough to establish liability; you must also prove causation and damages.


You must prove every dime of damages that you are demanding. This can be more difficult than you might think. Imagine assembling evidence to prove the value of your pain and suffering, for instance.

Actual Cause

The defendant’s negligence must have actually caused your damages. That means that the damages would not have occurred except for the defendant’s negligence. 

Proximate Cause

You establish proximate cause by establishing that the plaintiff’s damages were a foreseeable, direct, and natural consequence of the defendant’s negligence. This rules out liability for freak accidents. 

Negligence Per Se Definition: What Is Negligence Per Se?

Negligence per se is a shortcut to proving negligence. To establish liability through negligence, you must prove the following facts:  

  1. The existence of an applicable statute or regulation that sets forth a particular standard of conduct.
  2. The defendant violated the statute or regulation.
  3. The accident victim must be a member of the class of people who the drafters of the statute or regulation intended to protect.
  4. The defendant’s violation of the statute or regulation was the proximate cause of the victim’s damages. 

You must prove all four of these elements to win your personal injury claim through negligence per se. Essentially, the existence of the statute or regulation and the defendant’s violation of it constitute negligence.

Negligence Per Se Example

A driver runs a red light and hits a pedestrian crossing the street.

  • Applicable Statute: A Colorado traffic law mandates stopping at red lights.
  • Violation: The driver violated the law by running the light.
  • Protected Class: One purpose of the law is to protect pedestrians.
  • Proximate Cause: Running the red light directly caused the collision and the pedestrian’s injuries. The result was easy to foresee.

Without negligence per se, the victim would have to prove that failing to stop at a red light was unreasonable. With negligence per se, you can simply assume this much and leave it up to the defendant to prove you wrong. The defendant might still have other arguments to use.

Do You Need a Personal Injury Lawyer?

You don’t need a personal injury lawyer for just any claim. If your negligence claim involves a substantial amount of money, however, you probably do need a personal injury lawyer. 

A personal injury lawyer can not only help you win, but also help you win every penny you deserve. Don’t settle for less. Schedule a free initial consultation with a personal injury lawyer at your earliest convenience.

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