The classic limitation on use of negligence per se is under attack, based on a law-and-economic analysis by a visiting professor at the University of Chicago.
With negligence per se, Don Defendant’s conduct qualifies as negligent if Paula Plaintiff suffers personal injury as a result of Don’s breach of a safety statute. But according to the classic formulation, the doctrine of negligence per se does not apply unless (a) Paula was a member of the class of persons that the statute was drafted to protect, and (b) she suffered the type of harm that the law was aimed at preventing.
This means that even when Paula’s injury was a reasonably foreseeable result of the breach – and even when she suffered a type of harm that was also reasonably foreseeable – the doctrine of negligence per se would not apply, because Paula was not a member of the protected class, and did not suffer the precise kind of harm the statute was aimed at preventing.
Criticizing the classic limitations on negligence per se as “misguided,” Professor Ariel Porat argues that the “the weight” that judges give to these requirements “should be drastically reduced.”
In an upcoming issue of the Wake Forest Law Review, Porat concludes “there is a strong prima facie case” for applying the doctrine of negligence per se whenever a statutory violation increases either “the risks to the class of persons to which the victim belongs,” or “the type of injury the victim suffered” – and “those risks were foreseeable.”
Porat’s article – Expanding Liability for Negligence Per Se – is available at tortssymposium.law.wfu.edu/papers/porat.pdf.
Judges should apply an expanded version of negligence per se, Porat continues, “even when the risks that materialized are usual or background risks that in themselves would not justify the enactment of the statute.”
As an illustration, Porat uses an example from the proposed final draft of Restatement (Third) of Torts. Example 1, in Comment g of § 14, involves: (1) a statute that requires special railings on stairways, to prevent people with disabilities from falling; and (2) an able-bodied person who is injured in a fall that would have been prevented if the owner had complied with the law.
The doctrine of negligence per se would not apply, according to Comment g, because judges would probably view the able-bodied plaintiff’s fall “as not the type of accident the statute is considering.”
Rejecting the traditional approach, Porat contends “there is a strong prima facie case for liability in this example, even if it is clear that, in the absence of a disabled person, there is no duty to install the railing.”
Although able-bodied people would benefit from the special railing, Porat reasons, the benefit to that group would probably not be great enough to prompt a statute requiring the special equipment. But the benefit to disabled persons might also not be great enough to make the statute “cost-justified.” So, Porat explains, combining the risk of harm to disabled persons, plus the additional risk of falls by able-bodied persons, might be needed to justify the cost of special railings.
“In other words,” Porat explains, “it is possible that both the cumulative weight of the background risks (to able-bodied persons) and the unusual risks (to disabled persons) combined persuaded the legislature to impose a duty to install railings. Liability for risks to both classes of victims is therefore justified.”
Plugging some numbers into the example to show why the classic limitations on negligence per se are misguided, Porat assumes that: (1) the average cost of installing the special railings is 80; (2) the risk of harm to able-bodied persons who use the stairs is 30; and (3) the risk of injury to disabled persons who use the stairs is 60.
Under a law-and-economics analysis, conduct is considered negligent if the cost of a precaution is less than the expected value of the potential harm (calculated as the probability of an accident occurring, multiplied by the likely costs of the harm that would be sustained if the accident occurs).
If there is a 10% chance of an accident that will cause $1 million in damages, for example, but the defendant can eliminate this risk by taking a precaution that costs One Dollar, general societal well-being is optimized by holding the defendant liable for negligence if he skips the precaution and causes the accident. As the economists say, holding the defendant liable for negligence in this scenario is “welfare enhancing.”
Applying this type of analysis, Porat reasons that the risk of harm to able-bodied persons would not justify the cost of the special railings, because the expected value of the potential harm (30) is less than the cost of installing the railings (80). And, significantly, the risk of harm to disabled persons does not justify the cost, because 60 is less than 80.
The only way that special railings are cost-justified in this scenario would be to consider both the risks to disabled and able-bodied persons, because the combined potential harms (30 plus 60) are greater than the costs of compliance (80).
To optimize general social well-being, Porat concludes that the doctrine of negligence per se should apply to able-bodied persons in this situation. And extending the analysis, Porat also shows how failing to apply the doctrine of negligence per se to able-bodied persons in this scenario will, at times, “result in under-protection” for the disabled.
Using the same hypothetical numbers, Porat notes that, if the doctrine of negligence per se was not applied to protect able-bodied persons in this example, “a self-interested rational wealth-maximizing employer might prefer not to spend 80 on railings and instead shoulder liability of 60 towards disabled plaintiffs.”
“This would clearly be socially inefficient and impair social welfare,” Porat concludes, because it would undermine the statutory goal of protecting the disabled.
Porat acknowledges that the results would be different with different cost assumptions:
“But we (or the courts) don’t really know what the numbers are, and there is always the possibility that they could indeed work out similarly to the first numerical assumptions for Example 1. Furthermore, there are definite advantages to a doctrine of negligence (and negligence per se) that can uniformly be applied to all cases, regardless of the numbers. That is precisely how the general doctrine of negligence works: the injurer bears liability for risks he or she could have reasonably prevented, even if lower liability would be sufficient to incentivize him or her to take adequate precautions.”
Porat therefore suggests interpreting all safety statutes “as referring prima facie to all potential classes of victims who are expected – as a positive [i.e., practical] matter – to benefit from the given statute and to all types of injury that are expected – again, as a positive [practical] matter – to be reduced or prevented if the statutory duty is upheld.”
Porat refers to this as a prima facie approach for applying negligence per se, because he is not advocating that courts abandon traditional limitations on tort liability – including what the Restatement (Third) calls “the scope of liability” (formerly known as “proximate cause”), and the doctrine that “an injurer’s liability is limited only to wrongful risks, i.e., those risks that made his behavior wrongful.”
Mindful of these potential complications, Porat argues that “a breach of statutory duty should amount to no more than a strong prima facie case for liability.”
Summing up, Porat explains (again using the term “positive” in the sense of “practical”) that:
“The most plausible interpretation of a safety statute is that all victims of its breach who are expected – as a positive matter – to benefit from its protection are entitled to recovery and all foreseeable injuries that are expected – again, as a positive matter – to result from the breach are compensable. A breach of a safety statute should therefore give rise to a strong prima facie case for recognizing liability.”
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