“Negligence Per Se” in Nevada Injury Cases – How It Works

In Nevada, you can sue a person for “negligence per se” if they injure you by breaking a law or regulation that was designed to protect you. A classic example of negligence per se is a drunk driving accident: Because DUI laws are meant to protect people on the road, a driver commits negligence per se by violating the law and, as a result, harming you.¹

The following chart compares negligence per se to other common legal grounds in accident cases: negligence and strict liability.

To help you better understand Nevada’s “per se” negligence law, our Nevada personal injury lawyers discuss the following:

• 1. Elements of Negligence Per Se
• 2. Exceptions
• 3. Why is negligence per se important?
• Additional Reading

The statute of limitations in Nevada accident cases can be as short as two (2) years, so contact us right away to start working on your case.

1. Elements of Negligence Per Se

To establish a claim for negligence per se in Nevada, four “elements” must be shown:

1. There is a law or statute that exists to protect a class of persons;
2. You were a member of that class;
3. The defendant violated the law or statute; and
4. The defendant’s violation of the law proximately caused your injuries or damage.²

2. Exceptions

It is not negligence per se if:

• You were not in the class of people the statute was meant to protect, or
• The defendant’s actions were justified or excusable.

A violation of law is excusable or justifiable when the person who violated the law did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances. In short, complying with the statute would have created greater harm than violating it.

Example: John injures a pedestrian, Walter, when John drives down a sidewalk in Las Vegas and strikes Walter with his vehicle. Driving on the sidewalk is against the law in Nevada.⁵. As a result, John would normally be negligent per se.

However, at trial, John introduces evidence that he drove on the sidewalk to keep from hitting a small child who had suddenly darted into the street. The jury determines that John did what a person of ordinary prudence would reasonably be expected to do under the circumstances — namely, try to avoid hitting the child. As a result, Walter will lose his case unless there is another legal ground making John liable.

The burden of proof is on the person who violated the law to show by a preponderance of the evidence that such violation was excusable or justifiable.³ “Preponderance of the evidence” is a fancy way of saying that, based on the evidence, something is more likely than not.⁴

3. Why is negligence per se important?

To prove that a defendant was simply negligent and not negligent per se in Nevada, you must prove these two elements:

1. The defendant owed you a duty of care, and
2. The defendant violated the duty of care.

However, if you sue for negligence per se, you do not have to prove those two elements. Instead, these two elements are automatically proven if you can show the defendant violated a law or statute that was meant to protect you.

In this way, proving negligence per se is easier than proving straight negligence.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• The Need for Careful Application of Statutory Negligence Per Se – Wake Forest Intramural Law Review.
• Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Litigation – American University Law Review.
• Expanding Liability for Negligence Per Se – Wake Forest Law Review.
• Why Negligence per Se Should Be Abandoned – N.Y.U. Journal of Legislation & Public Policy.
• Negligence Per Se and Res Ipsa Loquitur: Kissing Cousins – Wake Forest Law Review.

Legal references: