By Derek J. Goff
There is almost nothing that the lawyer of a plaintiff loves more than removing elements of claims that have to be detected in court. If this lawyer can argue or prove that a law, regulation or regulation has been violated and that this violation determines negligent evidence, the victory comes much closer than for a lawyer who has to define the standard of care, and prove that the defendant does not meet it.
Under ordinary circumstances, a negligence claim includes four elements: obligation, violation, cause and compensation. However, if the behavior of a defendant violates a law – or in some cases a regulation or regulation – the question of whether the accused has violated the applicable standard of care, the jury can be removed. The potential application of negligence itself on regulatory violations motivates the lawyers of the clever plaintiffs to seek violations of the law, regulation or regulation in order to bypass the need to demonstrate the standard of care.
Studies show that the overall restrictions of regulatory restrictions in the United States rose by almost 20% from 1997 to 2016, with the regulations to be over one million. The regulations not only multiply, but also develop quickly. These regulations are often issued by agencies without direct legislative supervision and make it almost impossible for many defendants to ensure the full compliance of their daily activities.
If a defendant violates a law or an ordinance to prevent the type of damage occurring, the plaintiff can assert the “negligence itself” and make it easier to prove the first two elements of a negligence claim: obligation and violation. However, courts emphasize that negligence does not correspond to liability in itself; The plaintiff must continue to determine causality (both objectively and legally) and damage. In order to apply negligence per se, the courts judge whether the plaintiff “falls into the class of the persons, should protect the law or the regulation” and whether “the damage that the damage has been applied for is intended to do.” Mercy Housing Georgia III, LP V. Kaapapapapa368 Ga. App. 270, 274 (2023).
The second repetition of torts provides for:
If a legislative provision protects a class of people by remaining or demanding certain behavior, but is not available to civil law against the violation, the court may determine that the means of promoting the purpose of legislation is appropriate and needs to ensure the effectiveness of the provisions, the existing action that affects a suitable tort action or a new analysis of the class. Restatement (second) of torts § 874a (1979).
In a comment on this section, it is clarified that a “legislative provision” is not limited to laws that are issued by legislators, but may include ordinances, regulations and constitutional provisions that have been issued by Congress, state legislators, municipal councils, administrative authorities and in some cases, private or quasia organizations.
In a recent liability proceedings in Tennessee, an appellate court found that a town house and an owner to install a complete handicider in a staircase, under violation of a building code, which was negligent negligence, was told the need for the injured invitation to prove the owner that the owner was obliged and injured him. Franz V. FunesNo. E2023-01256-COA-R3-CV, 2024 WL 4346536 (Tenn. Ct. App. September 30, 2024); See also Champion Windows of Chattanooga, LLC against Edwards326 GA. App. 232 (2014). Likewise in Mercy Housing Georgia III, LP V. Kaapapapapa, SuppraOwners of § 8 Leading residential units, which did not provide the tenants with emergency calls that were prescribed according to HUD regulations, were negligent. Transport violations against statutory motor vehicle codes, which lead to accidents, can also support negligence itself on the claims. See Antwanella Hall against the USANo. 1: 23-cv-03323-SDG, 2024 WL 4355184 (Nd Ga. September 30, 2024).
In view of the large selection of laws, ordinances and regulations that regulate almost all behaviors, the courts have imposed the proposals of negligence on their own. Courts often rate the following factors to determine whether the doctrine applies:
- Whether the law is the only source of the defendant's obligation to the plaintiff.
- Whether the law clearly defines the forbidden or necessary behavior.
- Whether the law would impose liability without fault.
- Whether the use of negligence per se would lead to the declaration of damage disproportionately on the statutory violation.
- Whether the plaintiff's violation is a direct or indirect result of the violation of the law.
Rain against bending of the river124 SW3D 580 (Tenn. Ct. App. 2003). For example, the Supreme Court of New Jersey decided that the violations of the Osha work alone are not negligence at work. Alloway v. Bradlees, Inc.157 NJ 221, 723 A.2D 960 (1999). The court argued that the OSHA was enforcing the official security of independent civil agencies as the main funds to ensure security at the workplace. The violation was regarded as relevant for the jury to consider, but not dispositiv.
The defendants have also successfully argued that the legal force is missing, since they are more due to measures by the agency than to legislative decrees, which is not sufficient to support negligence itself. For example, the courts of Nevada decided that “a violation of the administrative regulations cannot support negligence in the theory”. Manley v. Mgm resorts int'lNo. 2: 23-CV -,000695, 2024 WL 4374059 (D. Nev. October 2, 2024). Therefore, the defense lawyer can defeat such claims by asserting that negligence per se only applies to violations of mandatory regulations that expressly lead to civil liability.
Derek GoffAn employee of the law firm Swift Currie in Atlanta focuses on his practice on opinions and legal disputes of first and third-party providers as well as on legal disputes for poor insurance. It can be reached at erek.goff@swiftcurrie.com.
