Questions and Answers, Torts I

Here are student questions submitted by e-mail, along with my responses. These are quick informal responses, not designed as thorough or formal statements of the law. To submit a question, click here .

Question 1 (December 1, 2001): (1) If you have a plaintiff and a defendant who are both negligent per se. In our hypothetical the plaintiff is walking down the left side of the road rather than the right (violating a statute to walk on the right, negligent per se), the defendant is drunk driving and hits the plaintiff (negligent per se). Would the defendant be able to bar the plaintiff's recovery because of contributory negligence if we're in a contributory negligence jurisdiction? (2) What if a bartender over serves a patron who drives away drunk and hits a girl in the road. The problem is the drunk driver wasn't negligent in driving (other than negligence per se) and the act of the girl running out in front of his car was actually the proximate cause of the accident. I guess the question really comes down to whether causation will defeat negligence per se?

Response (December 3, 2001): When negligence per se applies, this means, in most states, that the breach of the standard of care element of negligence has been met. Causation is still required. (1) If negligence per se applies to both plaintiff and defendant, then in a contributory negligence state, the plaintiff's contributory negligence would bar recovery. This might not be true for particular types of statutes designed to protect one class of people against another (e.g. statutory rape, perhaps the drug labeling statute), in which case the contributory negligence would not bar. That does not appear to be the case in your hypo, so plaintiff's negligence would bar recovery. However, in contributory negligence jurisdictions, courts mediate the harshness of the doctrine, by, for instance, letting an issue of contributory negligence go to the jury rather than determining it as a matter of law. (2) Your second hypo, the carefully driving drunk, raises some interesting questions. Would the plaintiff have been hit if the bartender had been careful? If the drinker was driving carefully, arguably it made no difference whether or not the bartender was negligent or not. Therefore no cause in fact re: the bartender. As for suing the driver, the case could be analyzed along the lines of Brown v. Shyne, pro or con.

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