Negligence Per Se vs Negligence: What's the Difference?

Negligence and negligence per se both prove fault in personal injury cases, but breach is established differently under each standard. Standard negligence requires showing a defendant failed to act as a reasonably careful person would, a standard the defense can always contest. Negligence per se applies when a defendant violates a statute enacted to protect a specific group of people from a specific harm. Breach is established by the violation alone, and the defense cannot argue the conduct was reasonable.

Standard Negligence

Standard negligence is the foundation of personal injury cases. A person is negligent when a failure to act with reasonable care causes injury to someone else. A judge or jury measures a defendant's conduct against what a reasonably careful person would have done under the same circumstances.

"Reasonable care" depends on context. A driver on an icy road and a property owner with a broken staircase face different expectations based on their specific role and situation. Negligence law asks whether the defendant's conduct fell below what would be reasonable in that context, and the answer depends on the specific facts of each case.

The Four Elements of a Negligence Case

To succeed on a negligence case, the plaintiff needs to establish all four of the following:

1. Duty: The defendant owed the plaintiff a duty of care under the circumstances.
2. Breach: The defendant's conduct fell below the standard of a reasonably careful person.
3. Causation: The breach directly caused the plaintiff's injuries.
4. Damages: The plaintiff suffered measurable losses like medical expenses, lost income, or lasting physical harm.

All four elements need to hold. A defendant who breached a duty but caused no injury is not liable, and a plaintiff who suffered injuries from an unrelated cause has not proven causation. Breach is the element the defense will contest most, because the definition of "reasonable" can change with the facts of each case.

Negligence Per Se

Negligence per se applies when a defendant violates a statute enacted to protect a specific group of people from a specific type of harm, and the violation itself establishes that the conduct was unreasonable. A plaintiff doesn't need to argue the breach element in the same way, because the statute defined the standard of care and the defendant violated it.

A judge or jury in a negligence per se case doesn't ask whether the defendant acted like a reasonable person. The question is whether the defendant violated a law designed to prevent the exact type of injury the plaintiff suffered.

Three Requirements for Negligence Per Se

For negligence per se to apply, the plaintiff needs to establish:

1. A statute or regulation existed and was violated.
2. The statute was designed to prevent the type of harm the plaintiff suffered.
3. The plaintiff was a member of the class of people the statute was intended to protect.

Once all three are established, breach is settled. A defense attorney cannot argue that violating the statute was reasonable, because the statute set the standard and the defendant fell short of it.

Causation and damages still need to be proven. Negligence per se resolves the breach element, not the entire case.

Negligence Per Se in Washington (RCW 5.40.050)

Washington departs from the majority of states on this doctrine in a significant way.

In most other states, violating a law enacted to protect people from harm automatically means negligence per se. Washington treats the same violation differently, as evidence of negligence rather than proof of it.

The difference affects how a case gets evaluated. The violation becomes one piece of evidence, and the defense can still argue the defendant's conduct was reasonable under the circumstances.

The Four Categories Washington Treats as Negligence Per Se

RCW 5.40.050 identifies four categories where a violation is negligence per se in Washington:

1. Electrical fire safety
2. Use of smoke alarms
3. Sterilization of needles and instruments used in body art, body piercing, tattooing, or electrology, or other precaution against the spread of disease, as required under RCW 70.54.350
4. Driving while under the influence of intoxicating liquor or any drug

Of the four, driving under the influence has the most direct connection to personal injury cases. When an impaired driver causes a crash, breach is established by the violation alone. Every other traffic violation works differently: running a red light or speeding is evidence of negligence, and the defense can still argue the conduct was reasonable under the specific circumstances. Two rear-end collisions caused by different violations can appear identical, but breach is settled in one and contested in the other.

Side-by-Side Look at Negligence vs. Negligence Per Se

In Washington, an additional layer applies: most statutory violations fall into the evidence column, and only the four categories in RCW 5.40.050 carry the negligence per se designation.

Causation and Damages in Both Standards

A finding of negligence per se doesn't resolve the entire case. Even after breach is established through a statutory violation, the plaintiff still needs to prove the violation was the proximate cause of the injuries and that the injuries resulted in documented, measurable losses.

Causation

Causation is not always straightforward. A defense team may argue the plaintiff's own conduct contributed to the injury or that the injuries were pre-existing. RCW 4.22.005 governs a rule referred to as comparative fault, which reduces a plaintiff's recovery in proportion to their share of fault.

In most cases, fault does not bar recovery entirely. One exception is RCW 5.40.060, which creates a complete defense when the injured person was under the influence of intoxicating liquor or any drug, that condition was a proximate cause of the injury or death, and the trier of fact finds the person more than fifty percent at fault. The complete defense is not available when the defendant was also a driver under the influence whose condition was a proximate cause of the injury.

Two Categories of Damages

Economic damages:

• Medical expenses and future treatment costs
• Lost income and reduced earning capacity
• Out-of-pocket losses connected to the injury

Non-economic damages:

• Pain and suffering
• Loss of enjoyment of life
• Emotional distress

Both categories apply under negligence and negligence per se. Negligence per se may resolve the breach question more directly, but the damages side of a case requires the same documentation and proof regardless of which standard applies.

Statutory Violations and Your Case at Freeman Law Firm

Washington's 1986 Tort Reform Act narrowed negligence per se to a small set of categories precisely because settling breach through a statutory violation is a significant outcome. In states where any statutory violation qualifies, the designation carries less weight. In Washington, it carries more.

If you've been injured in Washington and want to know which standard applies to your case, contact Freeman Law Firm, Inc. at (253) 383-4500 for a free consultation.