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How Negligence Per Se Can Simplify a Case

Updated: Mar 10, 2020

Stick figure of person falling

Not all negligence cases are equal. The facts can make a difference as to how a negligence case must be proved.

There are four elements to the proof of general negligence found in the common law:

1) Duty — The defendant owed a duty of care to the plaintiff; 2) A breach — A failure to fulfill the duty; 3) Causation — The breach led to the injuries; and 4) Damages — A monetized value of the injury.

Each of the elements must be proved if an injured party is to prevail in a law suit for injuries based on any type of negligence.

However, there are two situations in which the proof of negligence is simpler.

The first applies to the violation of a non-traffic penal statute. Florida Standard Jury Instruction 401.8 makes such a violation “negligence per se”. Such a violation, if proved, is deemed to be proof of negligence, bypassing the first two elements listed above.

Building code violations, among others, are included in Instruction 401.9, by which the proof of a building code violation may be considered by the jury, together with the other facts and circumstances, when determining the existence of negligence.

Building code violations do not reach the status of negligence per se, but it is obvious that there is great value in allowing such violations as objective standards to help determine the existence of negligence. A jury when presented with objective evidence of a code violation will have a much easier time finding for the injured party as opposed to a general case for which there may not be hard standards that can be applied.

Whenever possible, an attorney representing an injured party will want to find an ordinance, statute or code that falls with these Instructions. Either one will provide a greater chance of success. 


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