How Negligence Per Se Differs From Ordinary Negligence in a Colorado Personal Injury Case
There is more than one kind of most everything, and in the context of Colorado personal injury law, there is more than one kind of negligence.
There is ordinary negligence, which is the failure to take the proper care that a reasonable person would take in similar circumstances that result in harm. Then there is negligence per se, which involves conduct that violates a safety law, regulation, or ordinance, which is automatically considered negligent. One major difference between the two is that negligence per se requires no proof that the person should have behaved differently or with more care. Instead, the focus of a negligence per se claim will likely be on whether or not the conduct caused actual harm to the plaintiff.
Elements of a Colorado Negligence Per Se Claim
Negligence per se is intended to make it easier for injury victims to receive compensation when the other party violated a law, but the application of the doctrine varies according to state law. In Colorado, an injured plaintiff can claim damages under the common law doctrine of negligence per se but cannot cite any law that they please to do so.
To bring a successful negligence per se claim, a plaintiff must be able to prove the following three elements:
- The defendant broke the law.
- The law was enacted to protect the public from harm.
- The defendant’s violation of the law caused the plaintiff to sustain the kind of injury that the statute was intended to protect them and others like them against.
Making a Negligence Per Se Claim
A negligence per se case can be based on civil or criminal law. For example, a personal injury case in which an injured party claims that the negligent party was exceeding the speed limit when he caused a car accident may be established upon either a civil or a criminal statute.
But the court is not required to follow the sentencing or penalty guidelines set out in criminal law, even if it rules that negligence per se was committed, based upon that statute. The court may, however, compel the defendant to compensate the plaintiff for medical expenses, lost income, and other damages they sustained, as opposed to imposing the fine provided for by criminal law.
The court will fix damages based on what occurred, rather than on the criminal law because a negligence lawsuit is a civil claim with a lower burden of proof (preponderance of the evidence) than a criminal one (beyond a reasonable doubt).
Defending a Negligence Per Se Claim
There are situations when a defendant might be able to assert defenses that will allow them to escape liability in a negligence per se claim. These include:
- His or her incapacity made it reasonable for him to violate the law.
- He or she did not know or should not have known of his failure to follow the law.
- He or she was unable to comply with the statute, even through the use of reasonable care.
- He or she was confronted by an emergency not related to his misconduct.
- His or her compliance with the law would have presented a greater risk of harm to himself or others.
If you need advice regarding a potential negligence per se claim, contact an experienced Colorado personal injury attorney to discuss the details of your claim.