NEGLIGENCE PER SE ANALYSIS
At the most basic level, general negligence principles create liability when there is:
- A duty by the defendant to protect the plaintiff from injury; and
- Negligence by the defendant in failing to fulfill the duty; and
- Injury to the plaintiff caused by the negligent failure to fulfill the duty.
However, when the conduct violates an duty created by statute — a statute proscribing criminal conduct for example — then the question of negligence is eliminated. Instead, the defendant is said to be Per Se Negligent by violating the statute prohibiting the conduct.
In short, analysis of negligence per se cases focus solely on statutory violations. Provided a statutory violation occurred, the issue of whether the conduct of the defendant was negligent is eliminated as a consideration — because statutory violations are presumed to be negligent as a matter of law.
The Court in Sill v. Burlington Northern Railroad, 87 S.W.3d 386 (Mo. App. S.D. 2002) explained:
In the analysis of negligence per se, the precursor is a violation of a statute. See King v. Morgan, 873 S.W.2d 272, 275 (Mo.App. W.D.1994). A claimant may proceed on a negligence per se claim if the following four elements are met: (1) There was, in fact, a violation of the statute; (2) The injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) The injury complained of was of the kind the statute was designed to prevent; and (4) The violation of the statute was the proximate cause of the injury. If a submissible case is made under a negligence per se cause of action, a plaintiff could recover if a jury concluded that a statute was violated and the violation was the proximate cause of the injury. Vintila v. Drassen, 52 S.W.3d 28, 37 (Mo.App. S.D.2001). Thus, if the [jury] instruction were based upon the theory of negligence per se, the jury would begin their inquiry with the question of proximate cause. The issue of whether the conduct was negligent is not an issue submitted to the jury under a negligence per se instruction.
The Court in Bowman v. Ryan, 343 S.W.2d 613 (Mo. App. E.D. 1961)
Appellant further contends that the instruction as given constitutes error because it failed to require the jury to find the conduct stated in the first disjunctively stated submission to be negligence. We cannot agree that, under the facts of this case, such a finding of negligence must be specifically stated in this instruction. The wording of this submission is that of the statute, ‘ 304.021, subd. 6 RSMo 1949 (Laws 1953, p. 587, ‘ 1, V.A.M.S.), which reads:
- The driver of a vehicle intending to make a left turn into an alley, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction when the making of such left turn would create a traffic hazard. Laws 1953, p. 587, ‘ 1 (304.020.)
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It is settled law that absent a showing of such qualifying circumstances, in an instruction which requires the jury to find facts which, if found to be true, could only mean that the appellant was guilty of negligence per se, it is not necessary for the instruction to also require the jury to find that those facts constitute negligence because the law draws the conclusion in such cases.
Whether the defendant knew they were violating a statute is completely irrelevant under a negligence per se theory. In fact, the entire question of whether the defendant even knew about the statutory duties is irrelevant since everyone is presumed to know the law. The Court in Martinez v. Kilroy Was Here LLC, 551 S.W.3d 491 (Mo. App. E.D. 2018) explained:
Point II: Negligence Per Se
In its second point, Kilroy asserts that there was insufficient evidence to support the jury’s verdict on Respondents claims of negligence per se. Specifically, Kilroy argues that there was no substantial evidence that Kilroy had notice the tent did not comply with the City Ordinance requiring that the tent be able to withstand 90‑mile‑per‑hour winds. We reject this argument because we find that Respondents under a negligence per se theory did not need to prove Kilroy had notice the tent was not in compliance.
The violation of a statute, which is shown to be the proximate cause of the injury, is negligence per se. Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 84 (Mo. App. E.D. 2012). Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person should be and the court adopts that statutory standard of care to define the standard of conduct of a reasonable person. Id. When a case based on negligence per se is submitted to the jury, the standard of care is omitted because the statutory violation itself constitutes a breach of the standard of care. Id. To establish a claim of negligence per se, the plaintiff must plead and prove the following four elements: (1) the defendant violated a statute; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) the injury complained of was of the kind the statute was designed to prevent; and (4) the violation of the statute was the proximate cause of the injury.
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Statutes, on the other hand, comprise state law and amend the common law of Missouri, and thus create no conflict. See Mediq, 899 S.W.2d at 110 (The state legislature has authority to enact statutes that override the common law of the state.).
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We now turn to Kilroy’s argument that there was not sufficient evidence to support Respondents negligence per se claims because it was not shown that Kilroy knew it was not in compliance with the City Ordinance. We reject this argument because as a matter of law Respondents did not need to prove that Kilroy had such notice.
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Critically, no element of the negligence per se claims at issue here requires proof that Kilroy had notice or knowledge, actual or constructive, that the tent was not in compliance with the City Ordinance.
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Therefore, we find that it is of no consequence whether there was evidence that Kilroy knew its tent was not compliant with the City Ordinance, and we will not convict the trial court of error.
As a result, the question of whether the defendant knew he or she was violating a statute, or even knew what his or her statutory duties were, is completely irrelevant under a negligence per se theory.
A case may be submitted under negligence per se when four (4) conditions exist:
(1) Violation of a statute;
(2) The injured plaintiff was a member of the class of persons intended to be protected by the statute;
(3) The injury complained of was of the kind the statute was designed to prevent; and
(4) The violation of the statute was the proximate cause of the injury.
Sill v. Burlington Northern Railroad, 87 S.W.3d 386 (Mo. App. S.D. 2002)
The Missouri Approved Instructions make provision for submission of negligence per se, provided all four (4) negligence per se elements are present. These jury instructions eliminate the requirement that the jury find the defendant was negligent.
Whether to bring a claim under classic negligence standards, or under negligence per se standards, the manner in which both can be pleaded in the alternative and an election made at the time the case it submitted to the jury, and the best approach to presentation of a negligence per se case requires advise and action by an experienced Rolla injury attorney familiar with complex liability laws and pleadings.
By: Joseph W. Rigler
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