Thought Leadership

The Not-So-Hidden Peril of Negligence Per Se

In the business world, businesses are used to and prepared for disputes being he-said-she-said affairs. But in a negligence lawsuit, what do you do when the other side is able to remove the your-said part of the story? Well, that is precisely what happens when the opposing party obtains total or partial summary judgment before trial. This article addresses how statutory violations can be pinned on your business before it even has a chance to take its case to a jury — and how you can avoid this result.

Elements of Negligence Per Se

Let’s back up. The standard for ordinary negligence is the traditional standard of the reasonable person of ordinary prudence. Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981).

To win on a negligence claim, the party must prove: (1) duty, (2) breach of duty, (3) action or inaction caused the injury, and (4) damages as a result.

A per se negligence rule substitutes the ordinary standard with the provisions of a statute, [1] making the violation of the statute conclusive evidence of duty and breach. Gradjelick v. Hance, 646 N.W.2d 225, 231 n.3 (Minn. 2002).

But it is not enough to merely violate a statute; the statute must also have been intended to: (1) protect the plaintiff harmed by the violation; and (2) prevent the type of harm suffered by the plaintiff. Alderman’s Inc. v. Shanks, 536 N.W.2d 4, 7 (1995). In this admittedly situation-specific inquiry, courts have ruled that violations of statutes governing the following areas constituted negligence per se: construction work, highway-work-zone-speed limits, commercial-feed safety, fire codes, landlord’s removal of tenant’s personal property, train safety, railroad safety, electrical work, and use of pesticides.

On the other hand, courts have ruled that violations of statutes governing the following areas did not constitute negligence per se: nursing 60-hour-workweek limit, dog-owner’s liability, building codes, automotive codes, and workplace safety.

The Summary-Judgment Hammer

Summary judgment is a judgment entered by a court for one party and against another party without a full trial. In Minnesota, summary-judgment motions are governed by Minnesota Rule of Civil Procedure 56, which provides that the court “shall grant summary judgment” if there “is no genuine issue as to any material fact…” Typically, the party moving for summary judgment relies on deposition transcripts, admissions, declarations, and other documents to show there is no genuine factual dispute for a jury to decide. In the context of negligence per se, if your opponent is able to offer evidence showing that your business violated a statute, and your attorney doesn’t offer evidence that it didn’t, your ability to even argue to a jury that your business was reasonable is in dire peril.

To be sure, even a finding of negligence per se by the court at summary judgment removes only the duty and breach-of-duty elements from the jury’s consideration. The opposing party will still need to convince the jury that the business’s negligence caused the party’s injury, and that the party is entitled to damages for its injury.

But do you want your success in a lawsuit to depend on your attorney convincing the jury that although you had a duty and violated it, you should be off the hook because there was no harm?

Final Thoughts

A lawsuit is a race to the facts, and the attorney that gets a handle on the facts first usually wins. Negligence per se is no exception. Attorneys that know both the facts of the case and the law are much more likely to guide their clients through the minefield of statutory compliance during—and ideally before—litigation.

As I will address in another article, even if a statutory violation does not establish negligence, it may have other negative effects. And as always, the best policy is to know and follow the rules.

Of course, if you get sued, you’ll want to get a good lawyer regardless.

If you have any questions regarding negligence per se, or any other litigation-related questions or issues, please feel free to contact Brendan Kenny at [email protected] or 952-746-2139.

[1] For negligence per se, ordinances and regulations can also form the basis of a claim.


Brendan M. Kenny
Phone: 952-746-2139