Negligence is the foundation of most personal injury cases. Many non-lawyers use this word in everyday conversations to describe someone who isn’t paying attention and makes a mistake. It has a special meaning in the legal context – a more complicated meaning than most people understand. That’s because negligence is a term of art, so it has an entire legal doctrine that informs lawyers on how to interpret its meaning.

Most people don’t know that there are many different kinds of negligence, but the two most common forms are negligence and negligence per se.

What Is Negligence?

Negligence is the failure to use reasonable care that results in an injury to a person or property. This sounds simple enough, but it can become quite complicated. After all, everyone has a different idea of what is or is not reasonable.

In the eyes of the court, a person uses reasonable care when they act as an ordinary and prudent person would act under the same circumstances. The ordinary and prudent person is a fictional character invented by the courts. The court compares the defendant’s (the person at-fault) behavior to the expected behavior of an ordinary and prudent person. The ordinary person isn’t perfect, but they are always reasonable.

In order to show that someone was negligent in court, the plaintiff (the injured party) must have evidence proving four different elements:

  • Duty of Care: that the defendant owed a duty of care to the plaintiff
  • Breach of Duty: that the defendant breached that duty by acting unreasonably (as compared to the ordinary and prudent person)
  • Causation: that the defendant’s breach of duty was the direct and proximate cause of the plaintiff’s injury
  • Damages: that as a result of the breach, the plaintiff suffered actual damages (usually monetary) 

If the plaintiff can prove each of these four elements, then the court will rule in their favor. However, proving these four elements can be difficult, and there are defenses.

For example, the defendant may raise comparative negligence as a defense. In this scenario, the defendant argues that the plaintiff was also negligent and contributed to the accident. As a result, the defendant shouldn’t be required to pay any damages, or at least not as much. 

States differ as to how they evaluate comparative negligence. Oklahoma uses a “modified comparative negligence” standard and implements this standard via a “50%” rule. This means that if the person filing the negligence claim is 50% or more at fault for their own injury, they may not receive any compensation at all from the defendant. 

 What Is Negligence Per Se?

Negligence per se is an easier way for a plaintiff to hold the defendant responsible. The plaintiff doesn’t need to prove that the defendant breached a duty of care. Instead, negligence per se is a doctrine that lets the court infer the defendant was negligent if their actions violated a specific law. However, the plaintiff must also show that the law was designed to protect the plaintiff against the very harm that was caused.

For example, a driver is barreling down the highway at double the speed limit is breaking a traffic law. As a matter of public policy, speed limits are designed to protect other drivers on the road from accidents and unsafe driving. If the driver causes an accident while violating the speed limit, the court can infer that the defendant had a duty of care and breached it by speeding.

They won’t need to get into reasonable care or the ordinary and prudent person standard. Instead, the plaintiff only needs to prove that the defendant’s violation of the law was the direct and proximate cause of the injury, plus any evidence of damages.

Negligence per se might make it easier for plaintiffs to recover damages, but it’s not necessarily a slam dunk. The defendant can still raise defenses. For example, they can argue there was no choice but to break the law because complying with it would have been impossible or more dangerous than violating it. 

Contact an Attorney After Suffering an Injury

Most personal injury cases revolve around negligence. The standard is simple enough to understand but can become quite complicated to prove in an actual case. If you think you may have a case based on negligence or negligence per se, it is prudent to reach out to an experienced personal injury attorney. Many attorneys offer a free consultation, so it won’t hurt your pocket to reach out.

Contact the Oklahoma City Personal Injury Lawyers at McGuire Law Firm Today for Free Consultation

For more information, please contact the Oklahoma City personal injury law firm of McGuire Law Firm at our nearest location to schedule a free consultation today.

We serve throughout Oklahoma and its surrounding areas:


McGuire Law Firm – Edmond
200 E 10th Street Plaza
Edmond, OK 73034
United States
(405) 513-5658