Hunting for Statutes to Eliminate the Negligence Question 

By Derek J. Goff 

There is almost nothing a plaintiff’s attorney loves more than eliminating elements of claims that must be proven at trial. If that attorney can argue—or demonstrate through a conviction—that a statute, regulation or ordinance was violated and that this violation establishes negligence without further proof, victory becomes significantly closer than for an attorney who must establish the standard of care and prove the defendant failed to meet it. 

Under ordinary circumstances, a negligence claim comprises four elements: duty, breach, causation and damages. However, when a defendant’s conduct violates a statute—or in some cases an ordinance or regulation—the question of whether the defendant breached the applicable standard of care may be removed from the jury’s consideration. The potential application of negligence per se to regulatory violations motivates astute plaintiffs’ attorneys to search for statute, ordinance or regulation violations to bypass the need to prove the standard of care. 

Research indicates that total regulatory restrictions in the United States increased by nearly 20% from 1997 to 2016, with regulations targeting each industry now exceeding one million. Not only are regulations proliferating, but they are also evolving rapidly. Often enacted by agencies without direct legislative oversight, these regulations make it nearly impossible for many defendants to ensure full compliance in their day-to-day operations. 

When a defendant violates a statute or ordinance designed to prevent the type of harm that occurred, the plaintiff may assert “negligence per se,” relieving them of the burden of proving the first two elements of a negligence claim: duty and breach. Courts emphasize, however, that negligence per se is not equivalent to liability per se; the plaintiff must still establish causation (both factual and legal) and damages. To apply negligence per se, courts assess whether the plaintiff “falls within the class of persons the statute or ordinance was meant to protect” and whether “the harm complained of was the harm the statute was intended to guard against.” Mercy Housing Georgia III, L.P. v. Kaapa, 368 Ga. App. 270, 274 (2023). 

The Second Restatement of Torts provides: 

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action. Restatement (Second) of Torts § 874A (1979). 

A comment to this section clarifies that a “legislative provision” is not limited to statutes enacted by legislatures but may encompass ordinances, regulations and constitutional provisions issued by Congress, state legislatures, municipal councils, administrative agencies and, in some instances, private or quasi-private organizations. 

In a recent Tennessee premises liability case, the Tennessee Court of Appeals held that a townhome builder and owner’s failure to install a full handguard in a stairway, in violation of a building code, constituted negligence per se, eliminating the need for the injured invitee to prove the owner owed a duty of care and breached it. Franz v. Funes, No. E2023-01256-COA-R3-CV, 2024 WL 4346536 (Tenn. Ct. App. Sept. 30, 2024); see also Champion Windows of Chattanooga, LLC v. Edwards, 326 Ga. App. 232 (2014). Similarly, in Mercy Housing Georgia III, L.P. v. Kaapa, supra, owners of Section 8 senior housing units who failed to provide tenants with emergency call devices mandated by HUD regulations were found negligent per se. Traffic violations of statutory motor vehicle codes resulting in accidents may also support negligence per se claims. See Antwanella Hall v. United States, No. 1:23-cv-03323-SDG, 2024 WL 4355184 (N.D. Ga. Sept. 30, 2024). 

Given the vast array of laws, ordinances and regulations governing nearly all conduct, courts have imposed limits on negligence per se’s applicability. Courts often evaluate the following factors to determine whether the doctrine applies: 

1. Whether the statute is the sole source of the defendant’s duty to the plaintiff.  

2. Whether the statute clearly defines the prohibited or required conduct. 

3. Whether the statute would impose liability without fault. 

4. Whether applying negligence per se would result in damage awards disproportionate to the statutory violation. 

5. Whether the plaintiff’s injury is a direct or indirect result of the statute’s violation. 

Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003). For instance, the New Jersey Supreme Court held that a contractor’s violations of OSHA workplace regulations standing alone do not constitute negligence per se. Alloway v. Bradlees, Inc., 157 N.J. 221, 723 A.2d 960 (1999). The court reasoned that OSHA prioritizes regulatory safety enforcement over independent civil remedies as the primary means to ensure workplace safety. The violation was deemed relevant for jury consideration but not dispositive. 

Defendants have also successfully argued that regulations lack the force of law because they stem from agency actions rather than legislative enactments, rendering them insufficient to support a negligence per se claim. For example, Nevada courts have ruled that “a violation of administrative regulations cannot support a negligence per se theory.” Manley v. MGM Resorts Int’l, No. 2:23-cv-000695, 2024 WL 4374059 (D. Nev. Oct. 2, 2024). Thus, defense counsel may defeat such claims by asserting that negligence per se applies only to violations of mandatory regulations explicitly giving rise to civil liability. 

Derek Goff, an associate at law firm Swift Currie in Atlanta, focuses his practice on first- and third-party coverage opinions and litigation, as well as bad faith insurance litigation. He may be reached at derek.goff@swiftcurrie.com. 

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