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In an automobile accident action against a driver for damages suffered in a car collision, the driver’s violation of a traffic law can be evidence of his or her negligence. The law calls negligence based upon the violation of a specific requirement of law “negligence per se.” Negligence per se means that as a matter of law negligence existed. While the violation of a traffic law is negligence as a matter of law, the violation does not mean that the driver is liable unless the negligence was the proximate cause of the plaintiff’s injury. Negligence is ordinarily a question for a jury. It only becomes a question of law when a court determines that only one conclusion can reasonably be drawn from the evidence. If the violation of the traffic law is treated as negligence per se, the question of negligence will not be given to the jury.

For a traffic law to set a minimum standard of care so that its violation is negligence per se, the courts have noted that the law must be one to promote safety; the plaintiff must be a member of the protected class; and the defendant must be a person upon whom the statute imposes specific duties. Some courts do not consider the violation of a traffic law to be negligence per se. Some consider it prima facie negligence. Other courts call it evidence of negligence. Another group of courts consider it negligence per se and, therefore, the proximate cause of the injury. Finally, another group of courts see it as negligence per se, but it is for the jury to decide whether the negligence proximately caused the injury.

Some courts state that while the violation of a traffic law is presumably negligence, the presumption is not conclusive. The presumption can be rebutted by proof that the act was justifiable or excusable under the circumstances. For instance, it is against the law to travel on a road at night without headlights and a driver, who does so, is in an accident. The driver could show that although he knew that the headlights were not working, the car was the only way to get his ill child to a hospital. In such a case, the decision of whether that driver was negligent under the circumstances goes to the jury.

Often, a question of whether a plaintiff is contributory negligent for his or her own injuries arises because the plaintiff violated a traffic law. If the violation of the law is negligence per se, the plaintiff must show that the negligence was not a contributory factor to the accident. In the case of a violation of a mandatory seat belt usage statute, most courts hold that it does not establish negligence as a matter of law or negligence per se for comparative fault purposes. A majority of jurisdictions do not allow evidence of seat belt use to reduce a plaintiff’s recovery.

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The Law Offices of Martin Schwartz, Immigration and Civil Law, P.A.

8451 W. Linebaugh Ave Tampa, Fl. 33625
(813) 269-7421

Martin B. Schwartz

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