Statutes, Violations and per se Negligence
together with a patchwork network of
regulations, administrative codes and
statutes governing everything from how
far apart power outlets must be in a
residential home, to how fast you can
drive in a school zone, to how often a
sidewalk must be cleared of snow and
ice. In litigation involving allegations of
negligence, whether an applicable code
or regulation has been violated may have
enormous consequences for the outcome
of the case, because in certain situations
the violation of the statute, regulation
or industry standard will be considered
or regulation replaces the common law
"reasonable man" standard of care, and
a plaintiff need only establish a violation
of the statute or regulation to win the
day. While there are some general rules
that are basically the same across most
jurisdictions, the impact of proof of a
code or rule violation depends on your
jurisdiction.
In New York, and in many other
jurisdictions, statutes enacted by state
legislatures are treated differently
than local ordinances or regulations
promulgated by government agencies
or industry groups. The violation of a
state statute will be considered per se
negligence if the statute was enacted to
protect a class of persons, the injury is
the type contemplated by the statute, and
the defendant violated the statute and by
doing so proximately caused the injury.
(See e.g. Elliott v City of N.Y., 95 NY2d
730, 733 [2001].) In contrast, "violation
of a municipal ordinance" or other
administrative regulation "constitutes
only evidence of negligence," and proof
of a violation is not enough to establish
negligence per se. (Id.)
What this means as a practical matter,
is that in New York (and those states
following the New York rule) proof of a
violation of an administrative standard
or rule for example, an Occupational
Safety and Health Administration (OSHA)
standard, or a standard governing best
will never be enough to establish, per se,
the negligence of the party in violation of
the standard. While American National
Standards Institute (ANSI) and similar
requirements are "properly admitted" and
can be "considered by the jury as some
evidence of negligence," the standards
are "not conclusive on the subject of
negligence" and must be "considered
with all the other facts and circumstances
of the case in determining" whether the
violating party is negligent. (Sawyer v
Dreis & Krump Mfg. Co., 67 NY2d 328
[1986].)
In contrast, Florida and a number
of southern and western states do not
treat state statutes any differently from
local rules and regulations, and in those
states the violation of a building code
or other local administrative regulation
may be considered as per se evidence of
negligence. (See e.g. Brown v S. Broward
Hosp. Dist., 402 So. 2d 58, 60 [Fla Dist.
Ct. App. 1981].) The cases applying
this stricter standard typically deal with
vehicle and traffic violations, or violations
of a building code that result in injurious
accidents, but there is nothing in the
reasoning of those decisions to limit
the scope of the doctrine to traffic laws
and building codes. (See e.g. Giambra v
Kelsey, 338 Mont. 19, 36-37; Federated
Mut. Ins. Co. v. Hardin, 67 N.C. App. 487,
489 [1984].)
Regardless of the jurisdiction, defense
counsel should be alert to the opportunity
to use compliance with a statute, rule or
has spent his career as a litigator, focusing on
representing business clients in commercial
litigation matters, providing a sound defense
to insurance defense clients, and zealously
representing criminal defendants in state and
federal court.
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