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Negligence Per Se: A Closer Look

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Madeleine Jones
May 2, 2022

In a nutshell, negligence per se claims are easier to prove than ordinary negligence claims. Additionally, since these tortfeasors (negligent actors) deliberately violate safety laws, jurors often award additional compensation in negligence per se matters.

Ordinary negligence claims usually hinge on a duty of care which varies in different situations. But negligence per se is the violation of a statute. A safety law establishes the standard of care. Since laws apply equally to everyone, there’s no need to establish the duty of care in a particular case.

As for compensation, most people are familiar with the safety laws on Nevada roads and elsewhere in the Silver State. Jurors don’t like it when tortfeasors place their own convenience or preferences above the health and safety of other people.

Compensation in a negligence per se claim usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. A Las Vegas personal injury lawyer can also obtain additional punitive damages, in some extreme situations.

Negligence Per Se Elements

The elements in a negligence per se claim are rather straightforward. This doctrine applies if:

  • A tortfeasor violates a safety law, and
  • That violation substantially causes injury.

In some situations, negligence per se is only a presumption of liability. A Las Vegas personal injury lawyer must introduce additional evidence to obtain maximum compensation.

Negligence per se only applies if an emergency responder issues a citation. Frequently, that doesn’t happen, even in fatal accident claims. As far as many emergency responders are concerned, a car crash or other injury incident is a civil matter. Many responders don’t want to get involved in these disputes, so they don’t write tickets, even if one driver clearly deserves a citation.

Defenses in a Negligence Per Se Claim

As mentioned, the negligence per se shortcut makes it easier to establish a prima facie claim. However, a full range of negligence defenses are usually available in these situations, including:

  • Comparative Fault: Insurance company lawyers often try to shift blame for an accident from the tortfeasor to the victim. For example, perhaps Bill was speeding when Ted changed lanes illegally. In Nevada, tortfeasors are responsible for a proportionate share of damages if they are at least 51 percent responsible for an injury.
  • Assumption of the Risk: In premises liability claims, like dog bites and falls, this defense usually revolved around a warning sign, like “Beware of Dog” or “Caution Wet Floor.” In car crash claims, this defense usually involves the failure to properly wear a seat belt.
  • Emergency Doctrines: The sudden emergency defense excuses negligence if the tortfeasor reasonably reacted to a sudden emergency, like a hood fly-up. The last clear chance doctrine pins accident responsibility on the driver who failed to avoid a wreck, as opposed to the driver who started the chain of events.

The insurance company usually has the burden of proof, and the burden of persuasion, in these situations.

Resolving a Negligence Per Se Injury Claim

About 95 percent of injury claims, including negligence per se claims, settle out of court. A few claims settle almost immediately. That’s especially true in some negligence per se claims because the issues are rather straightforward. However, a negligence defense, even if it won’t hold up in court, delays the process.

Therefore, many injury claims settle during mediation. A third-party mediator, who is usually an unaffiliated Las Vegas personal injury lawyer, supervises a negotiation session on behalf of the judge. Because of the mediator’s deal-brokering skills, and also because both parties have a duty to negotiate in good faith, personal injury mediation is about 90 percent successful.

Contact an Experienced Clark County Negligence Per Se Lawyer

Injury victims are often entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Las Vegas, contact the Cogburn Law. We do not charge upfront legal fees in these matters.

I was hesitant about getting a lawyer for many reasons, however the entire staff at Cogburn Law reassured me that everything would be okay. They were always very attentive and provided detailed answers to any questions I had. I would like to thank the entire staff for all of your hard work, making sure that my daughters and I were compensated for the accident, and making sure we received all the necessary treatment. You were awesome. If you need an attorney that won’t look at you as just another case number, that’ll return your calls/emails I definitely recommend this team.

Jessica F.