This is one of the most important topics we will cover all semester. This can be comparable to the U.C.C. in Contracts, the rules of Civil Procedure, and the MPC in Criminal Law.

Osborne v. McMasters

40 Minn. 103 (1889).

Osborne is the plaintiff. Won, defendant appealed.


Is someone guilty of negligence for violating a statute just as they would be had they violated common law?


A person is guilty of negligence for being in violation of a statute.


The defendant violated a statute and can be found negligent. Affirmed.


Defendant failed to label a substance as “poison” as required by statute. Plaintiff’s intestate partook and passed.


It does not matter if the legal duty is outlined through common law or through a statute, if there is a failure to meet that duty, then one is negligent.

Lecture Notes

How is this different than dram shop acts? This action is not a statutory action. The statute does not give a right of action. However, the statute could give rise to negligence even if the action would not have otherwise been negligent.

Violation of the statute gives rise to “negligence per se“. A statute gives us an idea of what a reasonable person would do. How so? We can look at the legislative intent because that is what a reasonable person would do. The next few cases are going to look at how the courts have applied legislative intent to determine that there was negligence per se.

Applicability of Statute

Stachniewicz v. Mar-Cam Corp.

259 Or. 583 (1971).

Defendant is a bar. The plaintiff wanted certain instructions read which was denied. The plaintiff lost and appealed.


If a violation of Oregon’s liquor control regulation occurs, can it constitute negligence?


There is a violation of statute resulting in negligence when:

  1. Injury to these who are supposed to be protected by the statute
  2. The harm occurred by means which the statute is supposed to prevent.

The court will also look towards the appropriateness of the standard.


A jury could have inferred that the plaintiff was injured and that injury would not have occurred had there not been a violation of the regulation. Reversed for new trial.


The plaintiff was at the bar with several others when some intoxicated people shouted some things, made advances, and a brawl ensued. During the course of the brawl, the plaintiff sustained several head injuries causing amnesia. He sued the bartender for negligence because he had failed to follow the statute saying not to serve to those who were visibly intoxicated.


Although it would be unreasonable to assume that the failure to follow the statute would be the cause of the plaintiff’s injuries, the defendant can still be negligent because they did not meet the purpose stated in the regulation. That is, the statute as defined to prevent injury to those in bars. He had breached that duty by continuing to serve the instigators.


When determining to make a criminal statute have civil liability as well, the court will look to see:

  1. If the injured person is a member of the class the legislature intended to protect
  2. The hazard caused that caused the injury was the attempted one to prevent
  3. Finally, the appropriateness to impose tort liability.

Additional Notes

We are trying to determine if there was negligence per se. Based on what? The plaintiff relies their argument on two things. A statute and a regulation. What’s the difference? A regulation fills in the gaps of the statute. This is because a legislature can’t be expected to think of everything so regulations are based on legislative intent.

The most important statement of this case is

“Violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is the kind which the statute or regulation was enacted to prevent. The reason behind the rule is that when a legislative body has generalized a standard form the experience of the community and prohibits conduct that is likely to cause harm the court accepts the formulation.”

The issue with using the statute in this case is that there may have been a proximate cause issue (i.e. the visibly intoxicated person would have gotten in the fight without additional drinks from the bartender). However, the court says that the regulation can apply.

Three components to negligence per se

  1. If you want to use the statute, you need to show that you were a class of protected persons by the statute.
  2. The type of harm that occurred is the kind the statute was designed to prevent.
  3. Appropriate for the statute to apply. The court can choose (don’t have to) apply the statute.

So, what does it mean if the court adopts the statute? It means that when a person violates the statute, they are negligent per se and the plaintiff does not need to show that there was a common law duty of care.

Ultimately, this is a voluntary process on the part of the court.

Most courts don’t follow regulations like the Oregon court did here.

Ney v. Yellow Cab Co.

2 Ill.2d 74 (1954).


What was the legislative purpose?

Global Rule

UTA says:

  1. Can’t leave unattended without stopping the engine, removing the key, and turning to wheel to the curb
  2. Must be at least 15 to drive

Issue Rule

Legislative intent will be used to determine whether there was negligence in this case.


The legislative intent says that the statute was designed for public safety. Judgement affirmed.


Defendant had left a taxi unattended, it was stolen and crashed into the plaintiff’s car. The plaintiff sued arguing that the purpose of the legislation was to promote public safety and that the defendant was guilty of negligence per se through proximate cause.


For the first part of the statute, the court says that the purpose was not anti-theft on its face but the second statute is related to public safety. Combined, it can be inferred that the statute as a whole was designed to promote the well-being of the public. Because anti-theft is a public welfare issue, it can be seen that the statute would apply if there was proximate cause for negligence.

The dissent disagrees saying that the majority’s opinion is contradictory (can’t say that the purpose is not anti-theft then later go on to infer that the purpose is anti-theft).


Here the court finds that there was only one purpose. Other courts have found that legislative intent can have multiple purposes. Could the court have done so here? I don’t see why not, so I would like to know why they didn’t.

Additional Notes

We need to know the purpose of the statute to see if this is to prevent theft or if it is to regulate traffic. The court says that this is a traffic violation. In other words, it was not an antitheft statute. But the court has the discretion to see if the current case results in an injury against the purpose of the statute.

The editors put in this case to show that the even though there is a lot of discretion that the court can have. The purpose of the statute here was to protect against runaway vehicles. In essence the vehicle was runaway and the resulting injury occurred.

Perry v. S.N. and S.N

973 S.W.2d 301 (Tex. 1998).


Does this criminal statute also apply to the a civil tort? In other words, is it appropriate to impose tort liability on those who violate it?

Global Rule

A person who has cause to believe that a child is being abused must report it to authorities and failure to do so is a misdemeanor.

This law will not apply to the doctrine of “negligence per se if the criminal statute does not provide an approbate basis for civil liability.”

Issue Rule

Does the plaintiff belong to the class that the statute was intended to protect?

Is the injury the type that the statute was designed to prevent?

Is it appropriate to impose liability? Court considers

  • Is there notice?
  • Should we create liability without fault?
  • Is negligence liability disproportionate to the defendant’s conduct?
  • Direct or indirect injury?


There is no claim of tort negligence under this statute. Judgement reversed for this point made.


Plaintiff had children at a day care who were being abused by one of the owners in a neighboring home. Friends of the abuser knew of the abuse and did not report it. When discovered, the plaintiffs filed claims against all parties and sought to recover for tort negligence against those who witnessed the abuse and did not report it.

The trial court provided summary judgment for the defendants, the court of appeals affirmed the judgment in part (common law does not make negligence), and reversed in part (statute provides for negligence). The defendant appealed for this second portion and the plaintiff failed to appeal for the first.


Therefore, the court only conducts an analysis on whether the statute affords for tort negligence.

The court considers each of the factors listed earlier and apply them to the present case to determine if there was negligence or not. There must be citizen notice (went against the plaintiff). Liability can be created because there was the “knowing” portion that was met (in favor of plaintiff). The conduct of not reporting is much worse than engaging in the behavior (against the plaintiff). Finally, the injury was indirect (went against plaintiff).

All in all, it would not be fair, unworkable, and unwise to apply this statute to apply in tort liability.


This case dealt with when criminal liability can also apply to civil liability.

Additional Notes

Starting with the procedure: The trial court says that there was a failure to state an action. When there is a failure to state a cause of action, the pleadings of the plaintiff are to be taken as true. We are trying to determine if there is an actual claim here.

This is a criminal statute that does not say, “a person who violates this statute can be sued by someone who was injured” (civil in addition to criminal liability). Thus, this is a case where the plaintiff is bringing this statute into play to try and get negligence per se (taking this criminal statute and applying it to a civil case).

Here, the first and the second parts of applying this standard was met pretty clearly

  • Statute wanted to protect children
  • from abuse
Third part and focus of this case

However, this third part of applying the standard is not met according to this court

  • Is it appropriate?

To determine this, the court recognizes that the court needs to look at the big picture, not just the facts of this case. In other words, the scope of saying this is appropriate is much larger, it will include anyone who may know or have cause to know of the abuse and fails to report it. Is this fair, workable and wise? The court says no. Why? The common law gives no duty for acts of omission (unless there is a special relationship). So, should the statute impose that duty? No. Normally, the common law already has a duty that is in place and the statute defines that duty. Here, because there was no duty to begin with, there should not be a new duty imposed.

Additionally, how do you determine if someone has reason to know? A statute, as a matter of tort law, needs to have a better indication of what is required and prohibited (fair notice) of what is required.

Finally, the abuse from the Keller’s was much worse than the non-reporters. However, applying tort law here would put them on equal ground for tort negligence.

Thus, it is not appropriate.

Effect of Statute

What is the effect of saying that someone is negligent or contributory negligent per se?

Martin v. Herzog

228 N.Y. 164 (1920).


Was the defendant also negligent?


“Lights are intended for the guidance and protection of other travelers on the highway.”

Omission to follow this standard can lead to contribututory negligence.


The defendant was also negligent, ruling stands.


The defendant was driving a buggy while the plaintiff was driving a car. It was late, and the buggy had no lights. The plaintiff was driving down the middle, instead of the right side of the road. So, plaintiff sued for negligence (should have been on the right side of the road) and the defendant countered with contributory negligence (should have had a light on your buggy).

Trial court found in favor of the plaintiff, the Appellate Division reversed, and the plaintiff appealed.


The court is looking to see if there is a causal connection between the negligent action and the injury. In other words, was the fact that the buddy was not lit partially a causation factor of the accident occurring. The courts say yes because it was an hour after sunset.


Contributory negligence requires partial causation to the injury.

Additional Notes

What was the effect of negligence per se?

What class of people are we trying to protect? Those driving. What harm are we trying to prevent? Crashes. Those things happened.

This leaves only the question of causation. If the jury can determine if there was causation, then there was negligence.

However, there can be some excuses. See Zeni

Zeni v. Anderson

397 Mich. 117 (1976).

Zeni is plaintiff. Won in lower court, reversed in trial court and appealed.


Under what circumstances does she need to follow the law?


“Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.”

“Where observance would subject a person to danger which might be avoided by disregard of the general rule,” the court does not see a need to impose the statute.


Although in violation of the statute, no contributory negligence. Reversed.


On a snowy day, the plaintiff was walking to work. She did not used the sidewalk because of depth and icy nature but instead used a well-used pedestrian made path on the right side of the road. The defendant was driving to school with a passenger. She claims that the windshield was defrosted and the passenger claims that she had scrapped it. However, a witness claimed that the windshield was fogger.

All this to be said that the defendant hit the passenger on the passenger side of the car and kept driving, apparently not noticing anything. The witness rushed to the aid of the plaintiff who suffered permanent injuries.

The plaintiff sued for negligence (should have scrapped the windshield properly) and the defendant countered with a claim of contributory negligence (should have used sidewalk or should have been on the other side of the road).


There are three possible approaches that can be made to this:

  1. Violation of Statute as Rebuttable Presumption
  2. Violation of Statute as Negligence Per Se – Inflexible and mechanical (what we’ve been focusing on)
  3. Evidence of Negligence in the act of violation. – Too flimsy, rarely used.

The court chooses to use the first approach because it is fair and logical. Liability without fault is not negligence. Sure, she had been on the wrong side of the road, but the snow and other possible dangers made it impractical to be on the sidewalk or on the other side of the road. This meets one of the exceptions to following statutes as listed in the Restatement (Second) of Torts.


There can be excuses so one cannot be negligent. See Restatement (Second) of Torts.

Additional Notes

This case tells us: here are the ways the court treats negligence per se.

If there is a rebuttable (excuse) presumption, then the statute won’t apply and we will use a common law method.

Here, the argument is that it was safer to not comply with the statute.

Here are some of the things that excuse the violation of a statute:

  1. Incapacity
  2. Does not know
  3. Unable to comply
  4. Confronted with emergency
  5. Creates risk for others.

However, we don’t want to use this lightly. The court’s put a lot of weight on the statute and juries don’t like violations. So, even though excuse evidence will always be permitted, we don’t want to use these unless we have to.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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