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Negligence Per Se: A Good Start on the Road to Recovery


If you are involved in a personal injury lawsuit in Colorado, you may have heard the term, “negligence per se.” What exactly is negligence per se?

Negligence per se is one theory of liability that an injured party can use to recover damages from the party who caused their injury. Negligence per se is based upon the at-fault party’s violation of a statute or regulation: speeding, running a stop light, or failing to adequately maintain the safety of their property, for example.

Standard Negligence

In order for an injured party to recover under the standard negligence theory, he must prove that:

  • The negligent party owed a duty to the injured party to do (or not do) something.
  • The at-fault party violated that duty.
  • The injured party suffered damages.
  • The damages were as a result of the at-fault party’s violation of the duty.

Negligence Per Se

Under the theory of negligence per se, the violation of the statute or regulation fulfills the first two elements described above — that a duty to the injured party existed and it was breached. But to prove a negligence per se claim, the plaintiff must show that:

  • The defendant violated a statute (law or regulation).
  • The statute was intended to prevent the type of injury the plaintiff suffered.
  • The plaintiff is a member of the class of people whom the statute was intended to protect.
  • The defendant’s violation of the statute proximately caused the injury.

If all four of the above elements can be proven, the court will instruct the jury that it must find that there was a duty and that the duty was breached. In other words, instead of asking the jury to determine what a reasonable person would have done under the circumstances, the statute establishes what a reasonable person would have done, and proves that the defendant violated this standard of care.

For the plaintiff to prevail in his case, the jury will then only need to decide that the injured party has sustained personal injuries, damages, and losses that were caused by the negligent behavior of the defendant.

Negligence Per Se and the Law

A plaintiff is not allowed to invoke any law he chooses in order to establish negligence per se. Instead, negligence per se is reserved for statutes and regulations that are considered safety statutes, such as traffic laws and building code regulations.

The statute or regulation on which a negligence per se claim is based can be either a civil or criminal law, but the court is not required to following the sentencing or punishment guidelines of the criminal statute, even if negligence per se is found based upon that statute. The court allocates damages based on what happened, rather than on the criminal statute, because a lawsuit for negligence is a civil matter with a lower burden of proof (preponderance of the evidence) than a criminal one (beyond a reasonable doubt). The lower burden of proof in a civil case makes it inappropriate to impose criminal penalties on a defendant in the same case.

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My daughter and I first consulted with Dan Rosen after a very serious auto accident. Dan had several phone conferences with me, and Tracie was available whenever I called. We would recommend personal injury attorney Dan Rosen to anyone!
Sally from Denver, Colorado

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