Chapter 51: Negligence Per Se

§51.1 Ordinances

The Case: Smith v. Owen , 841 S.W.2d 828 (Tenn. Ct. App. 1992).

The Basic Facts: Suit by tenant against landlord arising from injuries to a child as a result of an electrical shock and alleging negligence per se based on violation of the housing code.

The Bottom Line:

• "The doctrine of negligence per se is firmly established in our case law. In order to recover on the basis of negligence per se, three elements must be established. First, it must be shown that the defendant violated a statute or ordinance which 'imposes a duty or prohibits an act for the benefit of a person or the public.' Nevill v. City of Tullahoma, 756 S.W.2d 226, 232-233 (Tenn. 1988) (citing Queen v. Dayton Coal & Iron Co., [32 S.W. 460 (Tenn. 1895)] and Memphis Street Railway v. Haynes, [81 S.W. 374 (Tenn. 1904)]). Second, the proof must show that the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance. Traylor v. Coburn, [597 S.W.2d 319, 322 (Tenn. Ct. App. 1980)] (citing Carter v. Redmond, [218 S.W. 217 (Tenn. 1920)]). In addition to establishing negligence per se by showing these two elements, the plaintiff must of course show that such negligence was the proximate cause of the injury. Brookins v. The Round Table, 624 S.W.2d 547, 550 (Tenn. 1981); Alex v. Armstrong, [385 S.W.2d 110, 114 (Tenn. 1964)]." 841 S.W.2d at 831.

Other Sources of Note: Pittenger v. Ruby Tuesday , Inc., No. M2006-00266-COA-R3CV, 2007 WL 935713 (Tenn. Ct. App. 2007) (distinguished from Smith because, unlike Smith, there was no "express prohibition" on the defendant's conduct).

§51.2 Statutes

The Case: Rains v. Bend of the River , 124 S.W.3d 580 (Tenn. Ct. App. 2003).

The Basic Facts: Underage buyer of ammunition committed suicide using a handgun. The parents filed suit against the seller alleging negligence per se and negligent entrustment. The parents also claimed loss of consortium for themselves and the buyer's siblings.

The Bottom Line:

• "However, the common law is not the only source of legal duties or standards of conduct in negligence cases. In addition to the general duty to act reasonably to avoid harming others, more specific duties governing particular situations and relationships may be imposed by the General Assembly. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994). Legislatively created legal duties arise in two ways. First, the General Assembly may create a legal duty and then provide a civil cause of action for its breach.^FN3 Second, the General Assembly may enact a penal statute that does not explicitly provide a civil remedy,^FN4 and the courts may then derive a civil legal duty from the penal statute. 'Negligence per se' is the term used to describe one of the two doctrines associated with the latter process.^FN5

  FN3 For example, the Tennessee Consumer Protection Act of 1977 imposes on merchants the duty to refrain from engaging in defined unfair and deceptive trade practices, Tenn. Code Ann. § 47-18-104 (Supp. 2002), and provides for a private cause of action for the breach of this statutory obligation. Tenn. Code Ann. § 47-18-109(a)(1) (2001).
  
  FN4 For example, motorists must stop in response to an illuminated flashing red traffic signal. Tenn. Code Ann. §§ 55-8-112(a)(1), -145(a)(1) (1998). Failure to obey these rules of the road is a Class C misdemeanor, but neither statutes contains a provision explicitly authorizing a civil action for damages against persons who violate the statute.
  
  FN5 In addition to the negligence per se doctrine, courts may also infer new private rights of action from a penal statute. Compare [Restatement (Second) of Torts §§ 286, 288 (1965)] with [RESTATEMENT (SECOND) OF TORTS] § 874A (1979). These two doctrines are analytically related but legally distinct. See Pratico v. Portland Terminal Co., 783 F.2d 255, 265-67 (1st Cir. 1985); [RESTATEMENT (SECOND) OF TORTS § 874A cmt. e]. However, many of the same considerations that are relevant to determining whether to identify a new private right of action are also relevant to determining whether a specific statutory standard of conduct should be imported into a negligence action."

  124 S.W.3d at 588-89.
• "The negligence per se doctrine does not create a new cause of action. Talley v. Danek Med., Inc., 179 F.3d 154, 158 (4th Cir. 1999); Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super. Ct. 2001); Zavala v. Trujillo, 883 S.W.2d 242, 246 (Tex. App. 1994). Rather, it is a form of ordinary negligence, Lowdermilk v. Vescovo Bldg. & Realty Co., 91 S.W.3d 617, 628 (Mo. Ct. App. 2002), that enables the courts to use a penal statute to define a reasonably prudent person's standard of care. Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002); Gradjelick v. Hance, 646 N.W.2d 225, 231 n.3 (Minn. 2002); Sikora v. Wenzel, 727 N.E.2d 1277, 1280 (Ohio 2000); Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001). Negligence per se arises when a legislative body pronounces in a penal statute what the conduct of a reasonable person must be whether or not the common law would require similar conduct. Lowdermilk v. Velscovo Bldg. & Realty Co., 91 S.W.3d at 628." Id.
• "The negligence per se doctrine is not a magic transformational formula that automatically creates a private negligence cause of action for the violation of every statute. Talley v. Danek Med., Inc., 179 F.3d at 158. Not every statutory violation amounts to negligence per se.Snider v. Snider, 855 S.W.2d at 590. To trigger the doctrine, the statute must establish a specific standard of conduct.Thomas & Assocs. v. Metropolitan Gov't, No. M2001-00757-COA-R3-CV, 2003 WL 21302974, at *7 (Tenn. Ct. App. June 6, 2003); King v. Danek Med., Inc., 37 S.W.3d 429, 460 (Tenn. Ct. App. 2000); [RESTATEMENT (SECOND) OF TORTS § 286 cmt. d]; [Restatement (Second) of Torts § 874A cmt. e] ('The common law tort of negligence is not changed, but the expression of the standard of care in certain fact situations is modified; it is changed from a general standard to a specific rule of conduct.'). Many states require the statutory standard of conduct to differ from the ordinary prudent person standard of conduct. E.g., Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 927 P.2d 1260, 1266 (Cal. 1997); Borns ex rel. Gannon v. Voss, 70 P.3d 262, 269 (Wyo. 2003). Invoking the negligence per se doctrine is unnecessary and redundant if the statute requires only the ordinary reasonable person standard of conduct.^FN8 Supreme Beef Packers, Inc. v. Maddox, [67 S.W.3d 453, 456 (Tex. Ct. App. 2002)]; Smith v. Central Freight Lines, Inc., [774 S.W.2d 411, 412 (Tex. Ct. App. 1989)].

  FN8 For example, Tenn. Code Ann. § 55-8-112(a)(2) requires drivers to proceed with caution when confronted with an illuminated flashing yellow caution signal. This statute requires the driver to exercise his or her judgment and reflects a standard of care that is no different from the ordinary prudent person standard of conduct. It differs from Tenn. Code Ann. § 55-8-112(a)(1) which requires motorists to stop at flashing red warning lights without exercising their judgment regarding the necessity of stopping."

  Id . at 590.
• "The effect of declaring conduct negligent per se is to render the conduct negligent as a matter of law. Sammons v. Ridgeway, 293 A.2d 547, 549 (Del. 1972); Goode v. Bauer, 109 S.W.3d 788, 791, 2003 WL 21355243, at *2 (Tex. Ct. App. 2003).^FN9 Thus, a person whose conduct is negligent per se cannot escape liability by attempting to prove that he or she acted reasonably under the circumstances. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 930 n.10 (Colo. 1997); Wilmington Country Club v. Cowee, 747 A.2d 1087, 1095 n.27 (Del. Super. Ct. 2000); Freudiger v. Keller, [104 S.W.3d 294, 297 (Tex. Ct. App. 2003)]. However, a finding of negligence per se is not equivalent to a finding of liability per se. Duckwitz v. Manor, 519 S.E.2d 483, 484 (Ga. Ct. App. 1999); Sikora v. Wenzel, 727 N.E.2d at 1281; Trivelas v. South Carolina Dep't of Transp., 588 S.E.2d 271, 275 (S.C. Ct. App. 2001). Plaintiffs in negligence per se cases must still establish causation in fact, legal cause, and damages. McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn. 1992); Stegall v. Dot Mfg. Corp., [446 S.W.2d 515, 518 (Tenn. 1969)]; Kim v. Boucher, 55 S.W.3d 551, 557 (Tenn. Ct. App. 2001).

  FN9 See also Prosser & Keeton § 36, at 230 ('The effect of such a rule is to stamp the defendant's conduct as negligence, with all the effects of common law negligence, but no greater effect.')."

  Id .
• "The fact that the General Assembly has enacted a statute defining criminal conduct does not necessarily mean that the courts must adopt it as a standard of civil liability. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). Decisions regarding the proper civil standard of conduct rest with the courts. Ramirez v. Plough, Inc., 863 P.2d 167, 172 (Cal. 1993). Thus, the courts must ultimately decide whether they will adopt a statutory standard to define the standard of conduct of reasonable persons in specific circumstances. Burns v. Frontier II Props. Ltd. P'ship, 106 S.W.3d 1, 3, 2003 WL 1961241, at * 3-4 (Mo. Ct. App. 2003); [Restatement (Second) of Torts § 874A cmt. e] ('[I]t is the court that adopts and utilizes the statutory rule in substitution for the general standard and . . . [the court] may exercise its sound discretion as to when this should be done.')." Id. at 590-91.
• "The courts consider a number of factors to determine whether the violation of a statute should trigger the negligence per se doctrine. The two threshold questions in every negligence per se case are whether the plaintiff belongs to the class of persons the statute was designed to protect and whether the plaintiff's injury is of the type that the statute was designed to prevent. Hardin v. Danek Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998); Smith v. Owen, 841 S.W.2d 828, 831 (Tenn. Ct. App. 1992); 1 Dan B. Dobbs, The Law of Torts § 137, at 323 (2001); [RESTATEMENT (SECOND) OF TORTS § 286].^FN10 Affirmative answers to these questions do not end the inquiry. Courts also consider (1) whether the statute is the sole source of the defendant's duty to the plaintiff, (2) whether the statute clearly defines the prohibited or required conduct, (3) whether the statute would impose liability without fault, (4) whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation, and (5) whether the plaintiff's injury is a direct or indirect result of the violation of the statute. Alloway v. Bradlees, Inc., 723 A.2d 960, 967 (N.J. 1999); Reeder v. Daniel, 61 S.W.3d 359, 366-68 (Tex. 2001); Goode v. Bauer, [No. 13-01-234-CV, 2003 WL 21355243, at *3]; [RESTATEMENT (SECOND) OF TORTS § 874A cmt. h(1)].

  FN10 The [Restatement] points out that the courts should not adopt a standard of conduct defined by legislation if the legislation's exclusive purpose is (1) to protect a class of persons other than the one whose interests are invaded, (2) to protect an interest other than the one invaded, (3) to protect against other harm than that which has resulted, or (4) to protect against other hazards than that from which the harm has resulted. [RESTATEMENT (SECOND) OF TORTS § 288(d-g)]."

  Id . at 591.

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