MBE® Flashcard

WHAT ARE THE TWO EXCEPTIONS TO THE APPLICATION OF NEGLIGENCE PER SE?

 

 

Even if negligence per se is applicable, the statute will not be used to set the standard of care, and the case will proceed under the reasonable, prudent person standard of care in two situations.

Exception: The defendant’s conduct is an excused statutory violation. For example, if there is an emergency not of the defendant’s own making or if it is more dangerous to comply with the statute than not.

Exception: If the statute violated by the defendant is a licensing statute. For example, Don and Paul get in a car accident. Paul wants to show that Don was driving with an expired license and therefore breached his duty. Court will require Paul to show that Don was driving unreasonably to establish breach.

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