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negligence per se

Negligence Per Se and Drunk Driving Cases

How do you prove fault in a drunk driving case? What type of evidence will you need to show that the drunk driver is liable? Is a drunk driver always at fault, no matter what? These are questions that injured people often have after a serious collision caused by an intoxicated driver. Depending upon the circumstances, the legal doctrine of negligence per se might apply. If the doctrine of negligence per se does apply to your case, it may be easier to prove fault and obtain compensation. To understand whether negligence per se is relevant to your case, you need to learn what it involves. Then, it will be important to understand the distinctions between negligence per se and other legal theories. You will also want to understand what type of evidence you will need for a negligence per se case. Finally, it is important to find out more about how negligence per se cases can be affected by the statute of limitations or by comparative fault issues.

What is Negligence Per Se? 

The term “negligence per se” literally translates to “negligence in itself,” according to the Cornell Legal Information Institute (LII). As the LII explains it: “In a torts case, a defendant who violates a statute or regulation without an excuse is automatically considered to have breached her duty of care and is, therefore, negligence as a matter of law. As a result, the only thing that must be proven at trial is whether the violation was the cause in fact and proximate cause of the plaintiff’s injury.”

For another definition, the Restatement (3d) on Torts says: “An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.”

When a person violates a law and causes harm because of the legal violation, the doctrine of negligence per se may apply. Negligence per se does not require an injured plaintiff to prove that the defendant breached a duty of care. Rather, the plaintiff must prove that the defendant violated a law. If the defendant violated a law and that violation caused harm, the defendant may be liable.

There are some exceptions to the rule, as the LII points out. Those exceptions may include, for example:

  • The statute, or law, was unclear (i.e., the law the defendant violated);
  • Defendant exercised reasonable care by trying to comply with the law; or
  • Defendant’s violation of the law resulted in less harm than if they had complied with the law.

In cases of drunk driving, these exceptions are unlikely to apply.

How Negligence Per Se Affects Drunk Driving Accident Cases 

What is the relationship between negligence per se and drunk driving cases? The Cornell LII emphasizes that “the most common application of negligence per se is traffic violations, where the driver is automatically considered negligent for violating the traffic code.” Traffic violations can include drunk driving accident cases. Under Ohio law, if a driver violates the state’s intoxicated driving laws, negligence per se can apply to the case.

What is Ohio’s drunk driving law? Some states use the term “driving under the influence,” or DUI. Other states use the term “driving while intoxicated,” or DWI. In Ohio, the law refers to “operating a vehicle under the influence of alcohol or drugs,” or OVI. The OVI law in the state says that “no person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply.” The statute lists the following as constituting an unlawful OVI and a violation of the law:

  • The person is under the influence of alcohol or drugs, or combination;
  • The person has a blood alcohol concentration (BAC) of 0.08 or higher or the equivalent in another type of sample like urine or blood plasma; or
  • The person has an unlawful concentration of an unlawful amount of a controlled substance (with unlawful concentrations varying for different types of controlled substances).

In sum, violating the OVI law in Ohio can result in the doctrine of negligence per se being applied. It is important to understand what an injured person must prove for negligence per se to apply.

Proving Elements of Negligence Per Se in a Drunk Driving Case

How can you prove negligence per se so that this doctrine is applied to your drunk driving case? For the doctrine of negligence per se to apply, the plaintiff must prove certain elements. Those elements include the following:

  • First, the plaintiff must prove that the defendant violated the law. In a drunk driving case, the plaintiff will need to prove that the defendant violated the OVI law.

Next, the following elements must also be true for the defendant to be responsible for damages:

  • OVI law was designed to protect persons like the plaintiff (e.g., another motorist, a vehicle occupant or pedestrian, or bicyclist); and
  • Plaintiff suffered the type of harm that the OVI law was designed to protect against.

To be clear, the plaintiff’s first task is to prove that the defendant violated the OVI law. If the plaintiff can prove a violation of the law, then the court will move on to the other elements. How can a plaintiff prove that a drunk driver violated the Ohio OVI law? There are many ways that a plaintiff injured in a drunk driving crash may be able to show that the defendant violated the OVI law. Some examples include:

  • Police report, or arrest report, showing the defendant was arrested for an OVI;
  • Data from a breath test or blood test showing a BAC or other measure above the legal limit;
  • Traffic cameras showing the drunk driver’s erratic driving;
  • Receipts from the restaurant or bar that served the drunk driver enough alcoholic beverages to result in intoxication; or
  • Witness statements from parties who observed the drunk driver’s behavior.

Why is Negligence Per Se Important to Apply to My Case?

You might be wondering: why should I want to apply the doctrine of negligence per se to my case? When the doctrine of negligence per se is applied, the plaintiff does not have to prove the elements of an ordinary negligence claim. As such, the plaintiff can often win a case and get compensation more easily. Applying the doctrine of negligence per se makes it easier for you to obtain the compensation you need.

Ordinary Negligence Versus Negligence Per Se

When you are trying to figure out if negligence per se applies to your case and why it is important for it to apply, you will need to understand the distinctions between ordinary negligence and negligence per se.

What is ordinary negligence? In an ordinary negligence case, a plaintiff usually needs to prove the following elements:

  • The defendant owed the plaintiff a duty of care;
  • The defendant breached the duty of care by acting in a negligent manner;
  • Plaintiff suffered harm; and
  • Plaintiff’s harm was caused by the defendant’s negligence or breach of the duty of care.

In an ordinary negligence case, the plaintiff will need to gather evidence to prove the defendant’s negligence. Differently, when the doctrine of negligence per se applies, the plaintiff does not need to prove negligence or that the defendant breached the duty of care owed to the plaintiff. Rather, the plaintiff only needs to prove that the defendant violated a law. In drunk driving cases, the plaintiff must only prove that the defendant broke the OVI law. Once the plaintiff proves that legal violation, the other elements of negligence per se are likely to be met. It is usually easier to prove that the defendant violated a law than to prove that the defendant breached a duty of care.

Is There a Difference Between Res Ipsa Loquitur and Negligence Per Se?

When you are seeking information about negligence per se, you might also come across the term “res ipsa loquitur.” This legal doctrine is similar to but distinct from negligence per se. In a case where res ipsa loquitur applies, the court says that evidence of negligence is unnecessary because the injury could only have occurred because of negligence. The classic example comes from a case called Byrne v. Boadle (1863). In that case, flour fell on a pedestrian from the window of a flour warehouse. The court said that the flour could only have fallen out of the window and struck the pedestrian if the flour warehouse workers were negligent. In other words, without negligence, the flour would not have fallen from the window. Res ipsa loquitur is not usually applicable to drunk driving cases. Instead, negligence per se is the doctrine typically applied to OVI lawsuits.

Timetable for a Drunk Driving Negligence Per Se Lawsuit

Even in a case where the doctrine of negligence per se applies, you must still consider the statute of limitations. The statute of limitations for most drunk driving accident cases in Ohio is two years. Accordingly, you will need to file your lawsuit within two years from the date of the OVI accident. If you do not file your claim within this time, your lawsuit will become time-barred. You should know that a drunk driving lawsuit can become time-barred even if there is irrefutable evidence that the defendant violated the OVI law in Ohio. Do not delay in filing your lawsuit.

Does Contributory Fault Impact a Negligence Per Se Case?

Contributory fault can affect a drunk driving lawsuit where the doctrine of negligence per se applies. Even if the defendant violated Ohio’s OVI law, the plaintiff could still be partially at fault for the accident. For example, the plaintiff could have been texting while driving or speeding. If the drunk driver can prove that the plaintiff was also negligent, the plaintiff’s damages can be reduced by their portion of fault. A plaintiff will only be barred from recovery if they are 51 percent or more at fault.

For example, imagine negligence per se applies, but the drunk driver proves the plaintiff was texting while driving. The court might determine that the plaintiff was 20% at fault. If the court awarded the plaintiff $100,000 initially, the plaintiff’s damages would be reduced by 20%. Accordingly, the plaintiff would recover $80,000. What if the court said the plaintiff was 60% at fault because of texting while driving? In that case, since the plaintiff would be 51% or more at fault, the plaintiff would be barred from recovery. It is rare for a plaintiff to be barred from recovery in negligence per se cases involving drunk driving.

Contact a Drunk Driving Accident Attorney in Hamilton, Ohio

Anyone who has been injured in a drunk driving accident, or has lost a loved one in a drunk driving accident, should learn more about negligence per se and how it impacts lawsuits. Personal injury law in Ohio can be complex and difficult to understand. If you have never considered the elements of a lawsuit, it can be confusing to distinguish between ordinary negligence and negligence per se. Our Butler County injury lawyers know that these terms are complex. We are here to help you with your case. An advocate at our firm can explain the differences between ordinary negligence and negligence per se. We can also help you to gather the evidence you need for a negligence per se claim. Even if you were hit by a drunk driver and there is no evidence that the motorist violated an Ohio traffic law, you may still be able to win a case.

The legal theory of negligence per se can make it easier for an injured plaintiff to win a case against a drunk driver. Yet proving negligence per se is not absolutely necessary for obtaining compensation. Even if you cannot show that a drunk driver was intoxicated and broke Ohio’s drunk driving laws, you may be able to recover damages. Injury victims may be eligible for compensation regardless of whether the doctrine of negligence per se applies to their case. An experienced Hamilton drunk driving accident lawyer can help you. Do not hesitate to get in touch with us to find out more about seeking compensation. Contact the law firm of Kruger & Hodges online or call our firm today at 513-894-3333 to get started.

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