Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews

Violation of Statute or Regulation As Establishing
Breach of Duty

1. Ordinarily, one’s duty under the tort of negligence is judged by the standard of the ordinary reasonable prudent person under the circumstances.

2. Where the legislature has passed a criminal or regulatory statute, or an administrative agency has promulgated a regulation, which has safety as one of its major purposes, and which is designed to protect a class of people of which Plaintiff is a member, against a kind of hazard that Plaintiff suffered, a common law court may adopt the statute or regulation as the standard of what a reasonable prudent person should have done in the circumstances in question. This is true even though the statute or regulation provides only a fine or other sanction and says nothing whatsoever about tort liability to any victim.

3. While several reasons have been given for courts doing this, it would seem that the most reasonable explanation is the courts’ beliefs that the legislature, as the elected representatives of the people, have enunciated the policy of the state on reasonable conduct in the circumstances in question; in addition, courts state that one can presume that the hypothetical reasonable prudent person would almost always obey the law. The decision whether a statute or regulation should be adopted as the standard of care is, in most jurisdictions, a question of law, for the trial judge to make, and not a decision left to the jury.

4. The court will not adopt a statute if it clearly would provide an unreasonable standard of care under the circumstances, such as the somewhat silly law that required a local speed limit of six miles an hour or which required a truck to constantly sound its horn as it drove through town. The same may be found for obsolete provisions, still on the books but no longer enforced. The question for the court is whether the statute or regulation provides a rational policy for that state of what a reasonable and prudent person should do.

5. The questions that arise in attempting to use a statute or regulation to establish or help establish the standard of care are:

• Does the statute or regulation establish the standard of care?

• Did the Defendant violate the statute or regulation?

• Was the violation excused under the circumstances?

• What is the procedural effect of the violation if unexcused?

6. The statute must have as one of its prime purposes “safety,” i.e., prevention of injury. Thus, a speed limit law which was passed for the purpose of conserving fuel during a gas shortage may be found not applicable to set the standard of care, since its purpose was not safety. A statute which required animal pens of a certain type to be used when transporting animals on ships was found to be for the purpose of preventing mis-breeding of the animals, and not for the purpose of preventing them from being washed overboard in a storm; other kinds of fencing would have been acceptable for the latter purpose. If the purpose of a statute prohibiting one from leaving one’s keys in a car is merely to prevent or make less likely the theft of the automobile, and thus protect the owner and the insurer, its primary purposes do not include safety; if, however, the statute is aimed at making it more difficult for thieves to steal cars for joy-rides or if the court perceives that the legislature felt that car thieves were more likely than other drivers to drive the car unsafely in fleeing the scene, then the statute might be adopted because it had safety as one of its main purposes.

7. The courts may resort to many devices of statutory interpretation to determine what the legislature or administrative agency was trying to prevent. The main rule of construction is the plain meaning rule, which requires determining the legislative intent from the common sense interpretation of the words used in the “four corners” of the statute or regulation. Other aids may include: the title; the preamble; drafters’ notes, if any; committee reports; debates; executive memoranda issued when the statute is signed; etc.

8. The statute or regulation must be designed to protect a class of individuals, of which the plaintiff is a member. Sometimes, the legislation or administrative regulation will specify for whom it is intended. One such statute was entitled “An act to regulate fire escapes for the protection of occupants of hotels.” The act was held not to protect a fireman injured when a fire escape on which he was standing while fighting a fire collapsed. A traffic ordinance, prohibiting lane-changing without signaling, is probably intended for the purpose of protecting other drivers behind, beside or perhaps in front of defendant, but not for the benefit of a store-owner, into whose store the violating driver drove his car after colliding with another car. On the other hand, the Liquor Commission regulation prohibiting a bar from allowing disorderly conduct on the premises, to” curb the abuses in the liquor industry,” was found to be designed to prevent injuries caused to patrons by barroom brawls or rowdiness.

9. The third requirement is that the statute or regulation be designed to prevent the specific kind of injury or hazard which befell the plaintiff. The prime example of this category is Gorris v. Scott, where the Contagious Diseases Act required animals on ships to be kept in pens. The purpose was to prevent the spread of disease, and not to prevent the animals from being washed overboard. Courts have much discretion in interpreting the statute or regulation; Thus, a statute requiring open elevator shafts on buildings under construction to be fenced off or have barriers might be construed as intended to prevent workers from accidentally falling down the shafts, but not to cover an injury to a worker on ground level when an upper level worker inadvertently kicked a heavy hammer down the shaft, or it could be more broadly construed to cover the threat of any falling object going down the shaft.

10. Licensing statutes–such as those for professionals or for automobile drivers–present a special problem. Most courts have held that violation of such a requirement is not admissible to establish a standard of care, since the person who did not have a license may have been acting completely carefully at the time. (However, it would seem that a failure to have a license, as for example to practice medicine, would tend to show that the defendant did not possess the training needed to practice that profession, even if it was not conclusive on the issue; perhaps this situation warrants a special rule creating a presumption that a defendant who performs an activity without a required license did not possess the minimum skill and training, but allow the defendant to rebut the presumption to show that he/she performed the act carefully, using the requisite skill and care).

11. The procedural effect of violation of a statute or regulation differs from state-to-state. The majority of states find that the unexcused violation of a safety statute or regulation, whose purpose is to protect a class of people of which plaintiff is a member from the kind of hazard plaintiff suffered, is “negligence per se.” One should be careful with this term, however. What it means is that the violation shows that the defendant had a duty to the plaintiff and breached it by falling below the required standard of care; plaintiff still needs to plead and prove that the violation proximately caused plaintiff to suffer damages. In other words, “negligence per se” means the estalblishment of the first two elements of the cause of action for negligence— defendant’s duty to plaintiff to conform to a standard of conduct to prevent the creation of an unreasonable risk of harm to plaintiff, and breach of that duty, by conduct falling below the standard.

12. In a considerable minority of states, violation of these statutes or regulations is merely evidence of negligence, much like violation of a custom would be. In these states, the jury would be directed to consider the violation of the statute or regulation, along with all of the other evidence, in deciding whether defendant, under the circumstances in question, acted as a reasonable and prudent person. Another way of stating this is that the statute/regulation is not binding on the jury to establish the standard of care.

13. Occasionally, a court may find that the underlying policy of a statute or regulation is so important that any violation, even accidental or technical, cannot be excused. These include child labor laws, pure food acts, some factory safety statutes or regulations. These statutes, in effect, are held to create strict liability.

14. For most statutes or regulations, however, even in negligence per se states, the trier of fact may find that Defendant’s technical violation was, under the circumstances, excusable. Relevant facts might include justifiable ignorance of underlying facts (e.g., one’s taillights burn out without knowledge), sudden unexpected emergency, or situations where it might be more dangerous to comply with the requirement than not to do so. For example, it would be cruel to hold that a car driver who, in violation of statute, drove on the left side of the road in order to avoid an infant who had wandered out into the driver’s path on the right side of the road, was not excused. Clearly, in states which follow the view that violation is only evidence of negligence, the trier of fact may consider evidence tending to excuse the violation of the statute/regulation in judging whether the defendant has acted reasonably under the circumstances.