Torts: Negligence: Duty: 6 special duty scenarios: Statutory Standards of Care/Negigence Per Se

Statutory Standards of Care – Π having been injured will file a negligence claim, getting ready for trial Π will discover a statute which specifically addresses the conduct of Δ that cause the injury. The problem will be that the statute will not provide for civil tort liability; rather it will be criminal or regulatory in nature, and technically will have no relevance to the negligence claim. Π may borrow the statute and make it the duty std for this case only, and if I can prove that Δ violated the terms of the statute, let’s make it negligence per se. A statute’s specific duty may replace the more general common law duty of care if: (class of person, class of risk)
  • (1) Π shows he is a member of the class of persons the statute seeks to protect
  • (2) Π also has to show that the accident that occurred is within the class of risks that this statute seeks to prevent
If there’s a violation, then it’s negligence per se.
  • EX: woman goes to work one day. she is unaware at the time she goes to office that there’s a gas leak from the stove in her kitchen. Has stressful day at work. Comes home, and really exhausted. She heads right for an overstuffed chair, and decides she needs to smoke some pot. She takes weed accoutrements from cigar box on her table, so she lights up, and there’s an enormous explosion. The gas had accumulated into a volatile cloud. The explosion destroys the neighbor’s wall. Π wants to sue. Π finds statute saying pot possession is a class A felony. Look at class of person, class of risk test. Statute designed to protect the drug user. It is not designed to protect next door neighbor. We have failed the 2 part test. Don’t borrow the statute. Π just goes forward to litigate under the RPP test.
  • Exception: If compliance with the statute would be more dangerous than violation, do not borrow the statute, even when the 2 part test is met.
    • Ex: Dave driving down narrow, curvy hwy. as he’s coming around curve, a child runs out. Dave swerves. Pete coming in the opposite direction, his a tree. Pete wants to use the don’t cross the yellow double line statute against Dave. Here, don’t borrow the statute, because compliance (staying in lane) would have been more dangerous than violation.
  • Exception: if compliance was impossible under the statute, do not borrow the statute.
    • Ex: Dave driving through major avenue, gets heart attack runs red light, hits Dave. Dave wants to use don’t run the red light statute. He can’t.