NEGLIGENCE PER SE OR FAILURE TO SAFELY OPERATE A MOTOR VEHICLE?

POPE V. BRIDGE BOOM, INC.: NEGLIGENCE PER SE OR FAILURE TO SAFELY OPERATE A MOTOR VEHICLE?

The facts of a recent published decision out of the North Carolina Court of Appeals addresses an interesting factual scenario that could conceivably come up in nearly any case. At the outset, it is necessary to define a key term: negligence per se. In its simplest form, negligence per se means negligence as a matter of law. In a typical negligence claim, the plaintiff must prove: (1) duty; (2) breach of that duty; (3) cause in fact; (4) proximate cause; and (5) damages. However, if a plaintiff can prove that the defendant was in violation of a law while performing the negligent act, and that negligent act caused the plaintiff’s injuries, the plaintiff can bypass the duty and breach portion of the analysis. The plaintiff would still have to prove causation and damages, but a lot of the difficult portion of a negligence analysis would be complete.
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In this case, the plaintiff argued that the defendant was negligent per se. The accident occurred in Mecklenburg County on Independence Boulevard, a very heavily traveled road in Charlotte. The defendants operated a street cleaning operation and were conducting those activities at the time. Three trucks belonging to the defendant were cleaning the street when two cars had to stop suddenly and change lanes. The third vehicle, a motorcycle on which the decedent was riding, also had to suddenly stop. However, instead of decelerating, the motorcycle slid on the asphalt. The operator and passenger on the motorcycle were thrown from the bike. The passenger died and the administrator of her estate brought this action.

The negligence per se portion of this case came out at trial. The plaintiff argued that the defendant was negligent per se because they were allegedly in violation of a statute that required the trucks to be on the shoulder of the road. However, the defendant offered expert testimony that suggested that it was the use of too much rear brake in the motorcycle by the operator that caused the accident, not the street cleaning crew.

This case does a fantastic job of highlighting how even a case with apparent negligence per se is never straightforward. Moreover, North Carolina is a contributory negligence state, which means that any negligence on the part of the plaintiff will completely bar recovery. This makes it very difficult on North Carolina plaintiffs without strong representation.

If you’re wondering, the plaintiff ended up losing in this case. The Court of Appeals upheld the jury verdict, finding that the motorcycle rider’s negligent operation of the vehicle was the actual cause of the decedent’s death.

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