We’ve mentioned before that negligence per se requires a claimed violation of a definite enactment – like a 70 mile per hour speed limit – that can substitute for the ordinary negligence “reasonable man” standard. However, we’ve never really studied it closely. Because negligence per se seems to be flowing rather than ebbing in prescription medical product liability litigation these days, we thought we’d give that concept a closer look.
As stated in our prior post, from way back in 2007, vagueness is one of our “big five” negligence per se elements that state law (in most, if not all, jurisdictions) imposes:
Negligence per se must be consistent with the intent of whatever body enacted the provision allegedly violated.
Negligence per se is improper where it would impose novel duties that are not analogous to any existing common-law duty.
Negligence per se is improper in some jurisdictions where only a regulation, and not a statute, was violated. It is improper everywhere where the alleged transgression involved something that lacks full force of law.
Negligence per se is improper where the allegedly violated statute is vague or imprecise.
Negligence per se is improper where the allegedly violated statute only required that the defendant obtain a license of some sort.
The third item, a regulatory as opposed to a statutory enactment, affects the vagueness element, because ordinarily regulations are much more detailed – and thus less vague – than statutes. Unfortunately, this third element is the least common among the states. The most prominent jurisdiction adhering to this requirement is Ohio, where the highest court has determined, as matter of policy, that state tort law will not adopt negligence per se “duties” found solely in regulations.
If we were to rule that a violation of . . . an administrative rule was negligence per se, we would in effect bestow upon administrative agencies the ability to propose and adopt rules which alter the proof requirements between litigants. Altering proof requirements is a public policy determination more properly determined by the [legislature]. . . . Further, scores of administrative agencies propose and adopt perhaps hundreds of rules each year. Considering the sheer number and complexity of administrative rules, a finding that administrative rules establish negligence per se could open the floodgates to litigation. . . . Only those relatively few statutes which this court or the [legislature] has determined, or may determine, should merit application of negligence per se should receive such status.
For all the aforementioned reasons, we hold that the violation of an administrative rule does not constitute negligence per se. . . .
Chambers v. St. Mary’s School, 697 N.E.2d 198, 202-03 (Ohio 1998) (citation and footnote omitted). The Ohio Supreme Court has reaffirmed the Chambers limitation of negligence per se to statutory violations on multiple occasions. E.g., Mann v. Northgate Investors, L.L.C., 5 N.E.3d 594, 601 (Ohio 2014) (if other negligence per se elements are met, “a violation of the statute constitutes negligence per se”); Lang v. Holly Hill Motel, Inc., 909 N.E.2d 120, 124 (Ohio 2009) (“administrative-rule violations do not create a per se finding of duty and breach of duty).
Another thing about the Ohio cases just cited – they require the enactment for which negligence per se is asserted to “set forth ‘a positive and definite standard of care . . . whereby a jury may determine whether there has been a violation thereof by finding a single issue of fact.’” Lang, 909 N.E.2d at 124 (quoting Chambers, 697 N.E.2d at 201). That’s the vagueness point.
Ohio is hardly alone in this requirement. To save our and our readers; time, we’ll restate what we said about vagueness precluding negligence per se back in 2007:
Vagueness – Whether FDCA-related negligence per se lies for purported violations of administrative regulations – or even less – is particularly important because the most frequently invoked sections of the Act are rather broad and vague as to what constitutes, for example, adulteration or misbranding. To the extent that these sections are given more precise substantive content, that precision is found in the Agency’s regulations. Negligence per se is generally not permitted where the statutory standard that the defendant allegedly violated is vague or non-specific.
Implicit in virtually all discussions of negligence per se is the unspoken assumption that the regulation in question establishes a clear minimum standard of care. If the regulation fails to do so, the reason for applying the doctrine fades. An ambiguous or contradictory regulatory standard defeats the certainty on which the rule of per se liability rests. Persons affected are deprived of a sure standard upon which they may fashion their affairs.
Dougherty v. Santa Fe Marine, Inc., 698 F.2d 232, 235 (5th Cir. 1983). Dougherty applied Louisiana law. Here are some more cases that refuse to allow vague, subjective standards created by statute or regulation to serve as negligence per se:
Thetford v. City of Clanton, 605 So. 2d 835, 842 (Ala. 1992) (no negligence per se where the statute “requires the [defendant] to file a report, but does not say where and does not say what should be done with the report”).
Shanks v. Upjohn Co., 835 P.2d 1189, 1201 (Alaska 1992) (no negligence per se “where a statute is too vague or arcane to be used as a reasonable standard of care, or amounts to little more than a duplication of the common law tort duty to act reasonably under the circumstances”); Dahle v. Atlantic Richfield Co., 725 P.2d 1069, 1073-1074 (Alaska 1986) (“This provision is not a proper basis for a negligence per se instruction because it amounts to little more than a duplication of the common law tort duty to act reasonably under the circumstances.”); Clabaugh v. Bottcher, 545 P.2d 172, 176 (Alaska 1976) (“where the jury must determine the negligence or lack of negligence of a party charged with the violation of a rule of conduct fixed by legislative enactment from a consideration and evaluation of multiple facts and circumstances by the process of applying, as the standard of care, the conduct of a reasonably prudent person, negligence per se is not involved”).
Reyes v. Frank’s Service & Trucking, LLC, 334 P.3d 1264, 1272 (Ariz. 2014) (“The statute ‘must proscribe certain or specific acts. . . . Therefore, if a statute defines only a general standard of care . . . negligence per se is inappropriate’”) (quoting Hutto v. Francisco, 107 P.3d 934, 937 (Ariz. App. 2005)).
Ramirez v. Nelson, 188 P.3d 659, 666-67 (Cal. 2008) (no negligence per se where the enactment “did not give rise to any special standard of conduct or duty of care” but “merely assign[ed] strict criminal misdemeanor liability” to certain acts); Gravelin v. Satterfield, 132 Cal. Rptr.3d 913, 921 (Cal. App. 2011) (“Presumptive negligence under Evidence Code section 669 requires proof of a specific statutory or regulatory violation” and “Plaintiff failed to identify a specific regulation”); Fagerquist v. Western Sun Aviation, Inc., 236 Cal. Rptr. 633, 640 (Cal. App. 1987) (“the doctrine of negligence per se is not applicable unless the statute, rule or ordinance allegedly violated sets forth a specific standard of conduct.”).
Trinity Universal Insurance Co. v. Streza, 8 P.3d 613, 616 (Colo. App. 2000) (“To establish a claim for negligence per se, plaintiff must demonstrate: . . . (3) that the statute or ordinance proscribes or prescribes specific conduct”); Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114, 118 (Colo. App. 1985) (“It is an essential element of negligence per se that the statute proscribe or prescribe specific conduct on the part of the tortfeasor, that is, detail whether particular acts shall or shall not be done by the party charged with observing the statute.”).
Pelletier v. Sordoni/Skanska Construction Co., 945 A.2d 388, 404 (Conn. 2008) (negligence per se argument “unpersuasive” where “the statutes in question . . . impose no specific duty); Pickering v. Aspen Dental Management, Inc., 919 A.2d 520, 525 (Conn. App. 2007) (“plaintiff’s negligence per se claim must fail” because the statute “does not set any particular standard of care”); Innis Arden Golf Club v. Pitney Bowes, Inc., 514 F. Supp.2d 328, 336 (D. Conn. 2007) (following “the requirement that negligence per se actions be based on a clear statutory standard of behavior aimed at individuals”).
Joseph v. Monroe, 419 A.2d 927, 931 (Del. 1980) (the enactment “which forms the basis of this action, also lacks the specificity required for the invocation of negligence per se”).
District of Columbia
Chadbourne v. Kappaz, 779 A.2d 293, 296-297 (D.C. 2001) (finding statute “too general . . . to be the subject of a negligence per se instruction”; collecting cases); Sibert-Dean v. Washington Metropolitan Area Transit Authority, 721 F.3d 699, 704 (D.C. Cir. 2013) (no negligence per se where “[i]t is not possible to tell whether a person has violated the standard set by this regulation without evaluating his or her actions against a common sense (and common law) baseline of reasonable behavior”); Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 558 (D.C. Cir. 1993) (“an alleged violation of a statute or regulation gives rise to a claim of negligence per se only when that statute or regulation sets forth specific guidelines to govern behavior”) (applying District of Columbia law).
Murray v. Briggs, 569 So.2d 476, 481 (Fla. App. 1990) (“At the very least, any regulation that purports to establish a duty of reasonable care must be specific. One that sets out only a general or abstract standard of care cannot establish negligence. Here the regulation is vague and general.”); Liese v. Indian River County Hospital Dist., 701 F.3d 334, 353 (11th Cir. 2012) (plaintiff did not “establish a sufficiently specific duty to allow relief under an evidence of negligence theory”; “a general duty to provide effective communication is insufficient under Florida law to state a negligence claim predicated upon the violation of a statute or regulation”) (applying Florida law).
Allen v. Lefkoff, 453 S.E.2d 719, 722 (Ga. 1995) (‘the failure to comply with general rules of conduct will not ordinarily constitute negligence per se”) (citation and quotation marks omitted); King v. Avtech Aviation, Inc., 655 F.2d 77, 79 (5th Cir. 1981) (regulation that “does not require specific conduct and is far too broad to establish a standard of care” cannot support negligence per se) (applying Georgia law).
Stem v. Prouty, 272 P.3d 562, 568 (Idaho 2012) (“The doctrine of negligence per se mandates that the statute or ordinance must clearly define the required standard of conduct.”); Stott v. Finney, , 950 P.2d 709, 711 (Idaho 1997) (“The principles relating to the doctrine of negligence per se . . ., predicated upon the violation of a statute or regulation, are well settled. First, the statute or regulation must clearly define the required standard of conduct.”).
Kovera v. Envirite, Inc., 26 N.E.3d 936, 955-56 (Ill. 2015) (where “the statute and the jury instructions representing the common law both stated exactly the same thing − that [defendant] would be negligent if he was not [acting] reasonably under the circumstances” there was no need to instruct on negligence per se); Stogsdill v. Manor Convalescent Home, Inc., 343 N.E.2d 589 (Ill. App. 1976) (no negligence per se because the regulations were “too vague to be sufficient indicators of the standard of due care”); Heisner v. Genzyme Corp., 2008 WL 2940811, at *7 (N.D. Ill. July 25, 2008) (a “negligence per se claim [that] . . . merely reiterates . . . general reporting requirements . . . will simply duplicate the claims of . . . overall negligence, and will likely be stricken”).
Lindsey v. DeGroot, 898 N.E.2d 1251, 1260 (Ind. App. 2009) (negligence per se “is founded in the defendant’s violation of a specific requirement of law”); Board of Commissioners v. Briggs, 337 N.E.2d 852, 865 (Ind. App. 1975) (negligence per se “is a violation of a specific requirement of law or ordinance”).
Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 4445 (Iowa 2016) (“the breach of a specific safety-related requirement . . . with the force of law may constitute negligence per se”); Struve v. Payvandi, 740 N.W.2d 436, 442-443 (Iowa App. 2007) (“in order to establish a violation the statute must have enough specificity to establish a standard of conduct”; “This statute does not contain a specific standard of conduct from which a fact finder could find a violation”).
Kerns v. G.A.C., Inc., 875 P.2d 949, 961 (Kan. 1994) (negligence per se “results from violation of the specific requirement of law or ordinance; and the only fact for the determination of the factfinder is the commission or omission of the specific act inhibited or required”) (quoting Watkins v. Hartsock, 783 P.2d 1293, 1297 (Kan. 1989)).
We didn’t find anything particular in Kentucky, but we remind our readers that Kentucky law doesn’t allow negligence per se based on the violation of any federal (as opposed to state) enactment – a quirk that we discussed here.
Meany v. Meany, 639 So. 2d 229, 235 (La. 1994) (“The violation of a legislative enactment commanding or prohibiting a specific act to ensure the safety of others arguably constitutes negligence per se.”); Dougherty, supra.
Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 559 (Minn. 1977) (in negligence per se the “statute or ordinance imposes a fixed duty of care, so its breach constitutes conclusive evidence of negligence”); In re Shigellosis Litigation, 647 N.W.2d 1, 10 (Minn. App. 2002) (negligence per se only proper “[i]f a statute defines the fixed standard of care”).
Westbrook v. City of Jackson, 665 So. 2d 833, 837 (Miss. 1995) (“Negligence per se is not applicable here” because the enactment “does not require the specific placement of [items] in a certain point”); Estate of Hazelton v. Cain, 950 So. 2d 231, 235 (Miss. App. 2007) (where “[n]o language is included [in the act] which creates a specific legal duty,” negligence per se will not lie).
Parr v. Breeden, 489 S.W.3d 774, 781 (Mo. 2016) (“the essential elements of a negligence per se claim includ[e] that defendants violated a specific statute or regulation”); Glover v. Atchison, Topeka, & Santa Fe Railway Co., 841 S.W.2d 211, 214 (Mo. App. 1992) (no negligence per se because “the rule was not of a specific nature”); In re Genetically Modified Rice Litigation, 666 F. Supp.2d 1004, 1022 (E.D. Mo. 2009) (negligence per se claim dismissed where regulations “are not sufficiently precise about what a person must do to comply. . . . They do not dictate the method of reaching that result, and so they do not provide a standard of care.”).
Jeffres v. Countryside Homes, Inc., 333 N.W.2d 754, 760 (Neb. 1983) (negligence per se is allowed when “there has been substituted for the general standard of reasonableness a specific rule of conduct”).
Yost v. US Airways, Inc., 2011 WL 1655714, at *4 (D.N.H. May 2, 2011) (“The problem with plaintiffs’ invocation of the negligence per se doctrine is that the regulation on which they rely simply does not establish a standard of conduct”).
Heath v. La Mariana Apartments, 180 P.3d 664, 666 (N.M. 2008) (“when a statute imposes a specific requirement, there is an absolute duty to comply. . . . However, where duties are undefined, or defined only in abstract or general terms, leaving it to the jury to evaluate the factual circumstances of the particular case to determine whether the defendant acted reasonably, then a negligence per se instruction is not warranted”) (citations omitted); Parra v. Atchison, Topeka & Santa Fe Railway Co., 787 F.2d 507, 509 (10th Cir. 1986) (“The critical inquiry in such [negligence per se] cases is whether the rule itself is of a specific nature allowing plaintiff’s actions to be evaluated objectively.”) (applying New Mexico law).
Yenem Corp. v. 281 Broadway Holdings, 964 N.E.2d 391, 394 (N.Y. 2012) (“violation of a State statute that imposes a specific duty constitutes negligence per se”); Morris v. Pavarini Construction, 874 N.E.2d 723, 726 (N.Y. 2007) (negligence per se applicable “only where the regulation in question contains a specific, positive command” and “not where the regulation itself, using terms like ‘adequate,’ ‘effective,’ ‘proper,’ ‘safe,’ or ‘suitable’”); Nicholson v. South Oaks Hospital, 811 N.Y.S.2d 770, 771 (N.Y.A.D. 2006) (negligence per se dismissed where the enactments “do not impose a specific duty on the defendants”); Sheila C. v. Povich, 781 N.Y.S.2d 342, 352 (N.Y.A.D. 2004) (“[b]ecause the statute sets forth a general, abstract standard prohibiting individuals from knowingly engaging in [certain] acts . . ., without specifically defining those acts, it cannot support a claim for negligence per se”).
Stein v. Asheville City Board of Education, 626 S.E.2d 263, 266 (N.C. 2006) (negligence per se requires a statute “imposing upon the defendant a specific duty for the protection of others”); Goodman v. Wenco Foods, Inc., 423 S.E.2d 444, 452 (N.C. 1992) (no negligence per se where the enactment “provides no standard by which to comply with that duty” that it imposed); Jones v. GMRI, Inc., 551 S.E.2d 867, 873 (N.C. App. 2001) (“although the Act imposes . . . a general duty . . ., it does not provide a ‘standard by which to comply with the duty” and cannot be negligence per se) (following Goodman).
Lang, supra; Chambers, supra; Rimer v. Rockwell International Corp., 641 F.2d 450, 455 n.2 (6th Cir. 1981) (“A finding of negligence per se requires a violation of a statute which sets out a specific standard of conduct”).
Athey v. Bingham, 823 P.2d 347, 349 (Okla. 1991) (negligence per se improper where “the terms of the statute . . . do not impose any positive objective standards nor do they proscribe any greater or lesser degree of care than that required of a driver under the prevailing rules at common law.”) (citation and quotation marks omitted)
Kim v. Multnomah County, 153, 970 P.2d 631, 638 (Or.1998) (“Neither is the statutory duty . . . to make investigations and reports as a judge may from time-to-time require sufficiently specific to so fix the legal standard.”); Shahtout v. Emco Garbage Co., 695 P.2d 897, 899 (Or. 1985) (negligence per se only applies where an enactment “so fixes the legal standard of conduct that there is no question of due care left for a factfinder to determine”).
Shamnoski v. PG Energy, Division of Southern Union Co., 858 A.2d 589, 601 (Pa. 2004) (“a per se negligence holding is warranted” where “the statute at issue [is] so specific as to leave little question that a person or entity found in violation of it deviated from a reasonable standard of care”); Young v. Commonwealth DOT, 44 A.2d 1276, 1279 (Pa. 2000) (no negligence per se because “the code does not provide more guidance” how to carry out claimed duty); In re TMI, 67 F.3d 1103, 1115 (3d Cir. 1995) (a “vague and elusive standard” cannot support negligence per se) (applying Pennsylvania law); Ries v. National Railroad Passenger Corp., 960 F.2d 1156, 1163 (3d Cir. 1992) (“we question whether general workplace regulations can create a statutory duty of care”) (applying Pennsylvania law); Beaver Valley Power Co. v. National Engineering & Contracting Co., 883 F.2d 1210, 1222 (3d Cir. 1989) (“general exhortations to maintain the facility in a ‘safe’ condition and to take ‘necessary’ action . . . do not provide guidance as to a legislative judgment that the failure to engage in certain conduct constitutes negligence”) (applying Pennsylvania law).
Albers v. Ottenbacher, 116 N.W.2d 529, 532 (S.D. 1962); (“the violation by the [defendant] of a statute or ordinance containing specific requirements . . . is negligence per se”); Schiernbeck v. Davis, 143 F.3d 434, 440 (8th Cir. 1998) (“A violation of a statute which sets forth specific duties constitutes negligence per se.”) (applying South Dakota law).
Conley v. Life Care Centers of America, Inc., 236 S.W.3d 713, 733 (Tenn. App. 2007) (negligence per se claim dismissed because “[t]he federal regulations are simply too vague and general to constitute a standard of care by which a jury, or for that matter a court, can effectively judge the [defendant’s] acts or omissions”); Rains v. Bend of the River, 124 S.W.3d 580, 591 (Tenn. App. 2003) (no negligence per se where the enactment “does not contain a clearly defined standard of conduct”); King v. Danek Medical, Inc., 37 S.W.3d 429, 458 (Tenn. App. 2000) (only a violation of an “ordinance [with] precise and readily understandable requirements” can be negligence per se).
Perry v. S.N., 973 S.W.2d 301, 307-08 (Tex. 1998) (“[O]ne consideration bearing on whether to apply negligence per se is whether the statute clearly defines the prohibited or required conduct.”’ “A statute that conditions the requirement to report on these difficult judgment calls does not clearly define what conduct is required in many conceivable situations.”); Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979) (negligence per se proper where “the statute clearly defines the prohibited conduct”); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 840-841 (Tex. App. 2006) (“the word ‘loose’ is vague and not susceptible of precise meaning” and “is not an appropriate standard for applying negligence per se”).
Green v. Denver & Rio Grande Western Railroad Co., 59 F.3d 1029, 1034 (10th Cir. 1995) (negligence per se limited to “specific, objective safety rules”).
Talley v. Danek Medical, Inc., 179 F.3d 154, 161 (4th Cir. 1999) (negligence per se permissible as to “a specific and substantive standard of care” imposed by statute) (applying Virginia law); Ridge v. Cessna Aircraft Co., 117 F.3d 126, 131 (4th Cir. 1997) (“the regulations at issue were too general to form the basis of an instruction that this violation would constitute negligence as a matter of law”) (applying Virginia law).
Taft v. Derricks, 613 N.W.2d 190, 194 (Wis. App. 2000) (“Negligence per se arises when the legislature defines a person’s standard of care in specific instances.” “When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard”).
Short v. Spring Creek Ranch, Inc., 731 P.2d 1195, 1199 (Wyo. 1987) (“to invoke the statute or regulation as a standard the statute or regulation must prescribe or proscribe specific conduct. Using the statute or regulation as a standard is not appropriate if it sets out only a general or abstract standard of care.”).
Note: Arkansas, Maryland, Michigan, New Jersey, and Washington do not recognize negligence per se at all, which we think accounts for lack of precedent on the specificity element.