

The Effect of Illegal Activities on Negligence Liability


When a defendant’s actions violate an applicable ordinance, law, or regulation, and the violation results in harm or damage to persons or property, the violation may constitute “negligence per se.”

Negligence per se is a legal doctrine that creates a presumption of negligence–though the doctrine does not mandate a finding of liability. Instead, the presumption has an impact on the burden of proof in the negligence case. Defendants may rebut (counter) this presumption by proving that, under the circumstances involved in the case, reasonable people would have violated the relevant law or ordinance.

Negligence per se arises only when all of the following four elements are met:

1. The defendant violates a law, ordinance, or other applicable legal standard.

2. The violation resulted in harm or damage to the plaintiff.

3. The plaintiff was a member of the class the law or ordinance was designed to protect.

4. The harm suffered was the type the law or ordinance was created or designed to prevent.

Where a legal violation results in a harm unrelated to the purpose or aims of the statute, negligence per se may not apply–though the defendant may still be liable for the plaintiff’s injuries. Remember: negligence per se is a presumption impacting the burden of proof, not a definitive test for negligence. Negligence, and liability, may exist whether or not negligence per se is also present.


Although compliance with all applicable laws and regulations prevents plaintiffs’ arguments that the defendant has committed negligence per se, compliance with law does not guarantee a lack of negligence liability. Even activities that comply with all applicable laws, rules, and regulations may still be conducted in a negligent manner–and if injury or damage results, may render a defendant legally liable for negligence. While complying with the law may help establish “due care,” the fact that an activity is legal, or carried out in a legally compliant manner, does not end the negligence inquiry or ensure a lack of liability.



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