Chapter 4 - § 4.4 • NEGLIGENCE PER SE

• Jurisdiction: Colorado

§ 4.4 • NEGLIGENCE PER SE

A negligence per se claim is a negligence claim, with the defendant's standard of care being set forth by statute or ordinance.⁷²

Most case law analyzing negligence per se claims involves the typical tort case — and only a small minority of the published cases on negligence per se involve product liability claims. However, negligence per se claims have been asserted in product liability actions.⁷³ For these reasons, this book briefly reviews Colorado law on negligence per se, but this review is by no means exhaustive.

Courts rarely enunciate a clear set of elements for a negligence per se-based claim in published case law. Certainly, courts have explained that a statute or ordinance sets forth the "standard of care owed by a defendant if (1) it was enacted for the public's safety, (2) it was intended to protect the class of persons of which the plaintiff is a member, and (3) it was enacted to prevent the type of harm suffered by the plaintiff."⁷⁴ And the plaintiff must also prove that the violation of the statute or ordinance caused the plaintiff's injuries.⁷⁵ Thus, if one were to set forth the elements of a claim asserting negligence per se, the elements would be:

1) The defendant violated a statute or ordinance;
2) The statute or ordinance was enacted for the public's safety;
3) The plaintiff is a member of the class the statute or ordinance was intended to protect;
4) The plaintiff suffered injuries;
5) The injuries plaintiff suffered were of the kind the statute or ordinance was enacted to prevent; and
6) The violation of the statute or ordinance was the proximate cause of the injuries plaintiff sustained.⁷⁶

No published cases examine the interaction between the statutory presumptions of compliance or non-compliance with governmental standards and claims of negligence per se.⁷⁷ An argument could be made that a negligence per se claim is inapplicable in product liability actions in light of the product liability statute containing rebuttable statutory presumptions on compliance and non-compliance with governmental standards. However, no published case law has addressed this issue, and several cases (cited above) have applied negligence per se to product liability actions.

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Notes:

^[72] Wallman v. Kelley, 976 P.2d 330, 333 (Colo. App. 1998) ("negligence per se is simply negligence with the standard of care being set forth in a statute or ordinance."), superseded on other grounds by statute C.R.S. § 13-21-402(1).

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