§33.3 Liability Per Se

• Library: Torts (OSBar) (2012 Ed.)

§33.3 LIABILITY PER SE

§33.3-1 Per Se Counts

Although most case law and commentary focus on negligence per se, the liability per se doctrine is not necessarily limited to negligence per se. However, the effect of the violation of a focused statute on common-law intentional and strict-liability torts is uncertain.

The violation of certain focused safety statutes other than those pertaining to motor vehicles arguably may affect a common-law negligence claim by allowing a strict-liability claim. Shahtout By and Through Shahtout v. Emco Garbage Co., Inc., 298 Or 598, 601 n 1, 695 P2d 897 (1985) (citing Peterson v. Standard Oil Co., 55 Or 511, 522, 106 P 337 (1910) (proof of violation of statute pertaining to labeling of kerosene products establishes negligence as matter of law; plaintiff need prove only causation and damages in addition to proving violation of safety statute).

CAVEAT: It is unclear whether and to what extent the strict-liability analysis discussed in the Shahtout case survives. More recent cases have not drawn a distinction between motor vehicle statutes and other safety statutes. See, e.g., Torres v. Pacific Power and Light, 84 Or App 412, 415, 734 P2d 364 (1987) (in safety-regulation case involving electrocution, court said that "[o]nce a violation is proven, the burden shifts to the person who violated the statute or rule to prove that he acted reasonably under the circumstances"); see UCJI No. 20.03.

§33.3-2 Negligence Per Se

Negligence per se is a common-law doctrine. Traditional negligence per se actions rest on the premise that a court has created, or should now be willing to create, a common-law negligence action for persons like the plaintiff. For example, in Miller v. City of Portland, 288 Or 271, 277, 604 P2d 1261 (1980), the court stated, "[w]hen courts thus adopt the statutory standard for a cause of action that would be common law negligence, the violation of the statute is said to be negligence per se." Accord Humbert v. Sellars, 300 Or 113, 128 n 3, 708 P2d 344 (1985) (Campbell, J., dissenting); RESTATEMENT (SECOND) OF TORTS §874A, comment e (1979).

For Oregon's version of negligence per se to apply, the statute must be focused; that is, the statute must satisfy the class-of-persons and type-of-harm criteria.

In 1972, the Oregon Supreme Court declared that the violation of a focused motor vehicle statute was not strict negligence per se in the sense of making the defendant strictly liable as a matter of law. Instead, the court held that the violation of a focused statute creates a presumption of negligence that can be rebutted by evidence that the defendant's conduct was reasonable under the circumstances. Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972); but see Shahtout By and Through Shahtout v. Emco Garbage Co., Inc., 298 Or 598, 601 n 1, 695 P2d 897 (1985) (violation of safety statute may create liability as matter of law).

Oregon appellate courts, however, continue to use the phrase negligence per se to describe their present analysis. See, e.g., Praegitzer Industries, Inc. v. Rollins Burdick Hunter of Oregon, Inc., 129 Or App 628, 632, 880 P2d 479 (1994); Shahtout, 298 Or at 601. Oregon courts also use the term statutory negligence to describe such a negligence count. See, e.g., Cervantes v. Mattson, 90 Or App 574, 576, 752 P2d 1293 (1988); Maquiel v. Adkins, 175 Or App 43, 55, 27 P3d 1050 (2001). See also UCJI No. 20.03.

NOTE: The Oregon Supreme Court has not expressly addressed whether an appellate court's use of the term negligence per se means the presumption of negligence test used for motor vehicle statutes when violations of other criminal safety statutes such as building codes are involved. Therefore the impact of violating focused safety statutes other than those involving motor vehicles remains uncertain.

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