0

When it comes to deciding what kind of weight excuse should have in negligence-per-se cases there is a 3 way split of authority.

AUTHORITY 1: Duty and breach are conclusively presumed or established by the violation of the statute. Defendant has no opportunity to rebut, but defendant can show excuse. Trial goes on to causation and damages

AUTHORITY 2: Duty and breach are rebuttably presumed by the violation of the statute. Burden shifts to defendant to rebut the presumption by showing that defendant acted as a reasonable person. If defendant does not rebut, defendant loses on duty and breach. Defendant may show excuse

AUTHORITY 3: The violation of the statute is merely evidence of the duty and breach which may be ignored by the trier of fact. Defendant can win even if there is no rebuttal

Regarding authority 1, what is the point of showing excuse if the trial goes on to causation and damages anyways?

Regarding authority 2, what is the point of showing excuse after failure to rebut results in defendant losing on duty and breach?

Improve this question

1 Answer 1

Reset to default
0

Regarding authority 1, what is the point of showing excuse if the trial goes on to causation and damages anyways?

Excuse is an affirmative defense, while duty, breach, causation and damages go to the prima facie case. For example, it is normally negligence per se to run a red light, and if running a red light causes someone to damage another car and the cost of repair can be estimated the case is proven. But, suppose that the accident happens while the driver was in hot pursuit of an active shooter and that was who was hurt in the accident. In that situation the ordinarily negligent conduct might be excused.

Excuse is not an absence of a breach of duty. It s a breach of duty that is not legally culpable for some reason that excuses the breach.

Regarding authority 2, what is the point of showing excuse after failure to rebut results in defendant losing on duty and breach?

The same analysis applies. You can do something that would ordinarily be a breach of a legal duty that is excused. To provide another example, suppose that the driver of the car is suffering an epileptic seizure for the first time while running the red light and was never before diagnosed with this condition and had no idea that he suffered from it. Even though he had a duty not to run red lights that was breached, the medical inability to comply with the duty might excuse the breach.

Improve this answer
2
  • 1
    The inquiry continues a bit if the neglegence per-se was predicated by statute, etc.. You need to further offer evidence that the injured party was among the class of people that legislation was designed to protect and that the harm resulted from an act the type of harm that the legislation was designed to protect against. While in theory, a negligence per-se charge should be a run-of-the-mill thing in red-light cases, etc, but courts over the past two decades have generally discouraged separate submissions if general negligence covers the same set of facts.
    – David C. Rankin
    Dec 27, 2018 at 8:47
  • @DavidC.Rankin Not untrue, but the question is about how excuse is an element that is different from the elements established when negligence per se applies.
    – ohwilleke
    Dec 27, 2018 at 11:33

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.