contributory negligence: a defense to negligence per se?

[dubsy]

what happens when a P is contributorily negligent ina  case where the D is negligent per se?

[UnbiasedObserver]

what happens when a P is contributorily negligent ina  case where the D is negligent per se?

EDIT: N/M.  I read your question wrong.  Sorry, let me do some thinking/quick internet searching for you. 

[summerisnear]

why wouldn't it be a defense (well, counter-defense, really)?  you can use contributory negligence after being proven to be negligent, why would it matter how you were proven to be negligent?  there is no reason a defendant can't claim contributory negligence even though the defendant is negligent per se. 

[UnbiasedObserver]

why wouldn't it be a defense (well, counter-defense, really)?  you can use contributory negligence after being proven to be negligent, why would it matter how you were proven to be negligent?  there is no reason a defendant can't claim contributory negligence even though the defendant is negligent per se. 

Yeah.

I did a brief search, and found this per the Rest. 2d Torts, Section 288B:

"COMMENTS & ILLUSTRATIONS:  Comment on Subsection (1):

a.  Where a statute or ordinance is adopted by the court as defining the standard of conduct of a reasonable man under the particular circumstances, as stated in §§ 285 and 286, the unexcused violation of the provision is a clear departure from that standard, and is conclusive on the issue of an actor's negligence. Usually it is said that such a violation is negligence "per se," or in itself. The same is true where the standard defined by an administrative regulation is adopted by the court as that of a reasonable man. The courts have tended less frequently to adopt the standard of such a regulation, but where it is adopted, the violation becomes negligence in itself.

b.  This means that the violation becomes conclusive on the issue of the actor's departure from the standard of conduct required of a reasonable man, and so, without more, is negligence. Such negligence makes the actor subject to liability, as that phrase is defined in § 5, but it does not necessarily make him liable. His conduct must still be a legal cause of the harm to the plaintiff, and there remain the possibilities of defenses, such as contributory negligence and assumption of risk, as to which see Chapters 17 and 17 A. (bolding added by me)"

Yeah, intuitively it makes sense.  Negligence per se just makes it easier for the P to make the prima facie case of negligence, specifically breach.  If the D can make a prima facie case against the D, it would be unfair not to hold the P liable for his negligent actions that caused the harm. 

[conrad42]

This is in support of the above comment, which is correct.

Remember that the word negligence has two meanings. First, there is the tort of negligence, which involves the following elements: duty, breach, but for cause, proximate cause, and harm.

Second, there is the act of being negligent, which is just the duty and breach elements. Negligence per se establishes the act of being negligence, but not the tort of negligence. So, if I breach a duty, I am negligent, but if my negligence didn't cause a harm, I am not liable for negligence.

As the above commenter noted, contributory negligence as a defense attacks the causation elements, where as negligence per se is only in relation to the duty and breach elements.

[nycdog]

1. in most jurisdiction violation of a statute is negligence per se. in some, it's just some evidence of negligence.
2. in most of jurisdictions the courts have rejected contributory negligence principle and replaced it with comparative negligence. so, π negligence is not a complete bar to recovery.
3. i would assume that even if you were negligent, your negligence is not going to be a complete bar to recovery.
however, i'm not saying that's going to be true in every state.

[bodhi]

For exam purposes if contributory negligence is an option, it would bar recovery completely. However, in practice, most states have abolished this and have adopted a form of comparative negligence, which could reduce the damages or bar recovery completely, depending on the state. But, i agree that if contributory negligence exists in that state, then it would be a defense to negligence per se.

For negligence per se you must establish: 1) Violation of a statute: 2) plaintiff was in the category of persons protected by the statute; 2) the harm was the kind of harm the statute was meant to protect against. Remember you need each of these elements and not simply a violation of a statute.

[,.,.,.;.,.,.]

If it's contributory negligence, then you're suggesting that, by violating a statute, the defendant breached their duty, but the plaintiff also breached their duty, so I'm guessing it's a wash.

[UnbiasedObserver]

For negligence per se you must establish: 1) Violation of a statute: 2) plaintiff was in the category of persons protected by the statute; 2) the harm was the kind of harm the statute was meant to protect against. Remember you need each of these elements and not simply a violation of a statute.

Just keep in mind that some states can go more in depth than what you just stated.  The Restatement 2nd mentions it, and in addition to establishing the class of persons, one needs to establish: 1) the proper interest is being protected; 2)the particular type of harm as you stated; 3) the interest that is meant to be protected from the particular type of hazard.

It's basically just an expansion of what you said, but it's good to keep in mind.