Negligence Per Se

Saltzman Road in northwest Portland was closed on March 15, 2010, because of a severe car accident. The closure was extended as Washington County Sheriff’s office dispatched a crash analysis reconstruction team to aid in their criminal investigation. The Sheriff’s office suspects that one of the drivers was impaired at the time of the accident. Fortunately, it appears that nobody suffered severe injuries, even though two people were transported to the hospital. This situation poses an interesting question though. What happens if the Sheriffs’ office determines that the driver was not impaired, and neither driver is given a traffic citation? Can the injured parties still bring a claim to receive compensation for their injuries? What is the implication if the driver is guilty of driving impaired.

Establishing liability in an accident scenario does not depend on whether someone has broken a traffic ordinance, though it certainly helps. Liability in civil law is a different standard than the standard for traffic or criminal violations. In civil law, an injured party only needs to prove that the other party was negligent, meaning that they violated the duty of care a reasonable person would use in like situations. What makes proving negligence easier is when the other party has already been found to have violated traffic or criminal law pertaining to the activity that caused the injury. In the example used above, if the Sheriffs officer determines that the driver was impaired, the injured parties could use that finding to establish negligence on his part for causing the accident. This is a legal doctrine referred to as negligence per se.

For negligence per se to apply, the plaintiff must prove (1) “the injured person is a member of the class intended by the legislature to be protected”; and (2) “the harm is of the kind which the statute was intended to prevent.” Miller v. City of Portland, 288 Or 271, 276, 604 P2d 1261 (1980); Beeman v. Gebler, 86 Or App 190, 193, 738 P2d 605 (1987). In a drunk driving accident, establishing these two elements is simple. Prohibitions on drunk driving are intended to protect the public from the harm that can be caused from a motor vehicle collision. Put simply, the legislature has outlawed drinking and driving so individuals don’t get drunk and go run into other people or property. If someone is convicted of driving impaired, and injured someone while they were impaired, the injured party can bring a claim under a negligence per se theory.

Establishing a theory of liability is one of the first steps in analyzing a potential car accident claim. No matter how bad someone has been hurt, proving negligence is necessary before pursuing compensation from the other driver’s automobile insurance company.