What happens when a person breaks a law and injures another person? The Law has developed an answer known as “negligence per se.” “Per se” means “in itself” – the negligence per se doctrine holds a person responsible for the injuries he causes when he violates a law under certain conditions.
In the Nevada Supreme Court case Barnes v. Delta Lines, Inc., 99 Nev. 688, 690, 669 P.2d 709 (1983), the Court held “when a defendant violates a statute which was designed to protect a class of persons to which the plaintiff belongs, and thereby proximately causes injury to the plaintiff, such a violation constitutes negligence per se.” Negligence per se does not apply to all Statutes, Laws or Regulations. In Vega v. E. Courtyard Associates, 117 Nev. 436, 439, 24 P.3d 219 (2001)the Court stated “whether a particular statute, administrative regulation or local ordinance is utilized to define the standard of care in a negligence action is clearly a question of law to be determined exclusively by the court.”
The current Nevada Pattern Jury Instructions includes Negligence Instruction 4NG.29 (Violation of Law as Negligence per Se; No Evidence of Excuse or Justification) which states:
There was in force at the time of the occurrence in question [a law] [laws] which read as follows:
A violation of the law[s] just read to you constitutes negligence as a matter of law. If you find that a party violated a law just read to you, it is your duty to find such violation to be negligence, and you should then consider the issue of whether that negligence was a [proximate] [legal] cause of injury or damage to the plaintiff.
(Source/Authority: Ashwood v. Clark County, 113 Nev. 80, 930 P.2d 740 (1997); Doe v. Nevada, 356 F.Supp. 2d 1123 (D. Nev. 2004))
Whether or not a party was negligent is a question of fact for the Jury to decide. See, Frias v. Valle, 101 Nev. 219 (1985). This decision can be effected by the negligence per se doctrine. You will notice that the Jury Instruction does not require an arrest, citation or conviction to have occurred – it is for the Jury to find whether or not the law was violated. Nor, under Frias, does the Jury have to find Negligence if the Defendant was arrested (or cited), but not convicted of the crime. In Mendez v. Brinkerhoff, 105 Nev. 157 (1989), the Nevada Supreme Court held that “because the evidence is so ambivalent, we conclude that it is not admissible against the forfeiting party as an admission that he or she committed the traffic offense charged in the citation.”
Lawyers need to be prepared to make arguments for and against the use of the negligence per se doctrine when preparing for Trial. The use of this doctrine can be a powerful tool in many cases.
