April 21, 2018

What’s the Difference Between Negligence Per Se and a Private Right of Action?; Stachowski v. Estate of Radman

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This case highlights a question which seems obvious, but had not occurred to me before—what is the difference between a private right of action created by a statute and negligence per se, which occurs when a statute has been violated. As this case points out, the central difference is the source of the defendant’s duty.

The Stachowskis were renting a home from Radman in South Bend. A handrail on the deck was allegedly rotten, and Brenda Stachowski was injured when she fell through that handrail. The Stachowskis sued Radman, arguing that a South Bend ordinance required Radman to maintain the handrail. Radman’s estate moved for summary judgment, arguing that Radman had no duty to maintain the handrail. The trial court granted the Estate’s motion, and the Stahcowskis appealed.

On appeal, the question was whether Radman’s alleged violation of the ordinance was negligence per se and, if not, whether the ordinance created a private right of action. The Stachowskis argued that the violation was negligence per se, but the Court found that this misunderstood that doctrine.

But the doctrine of negligence per se doesn’t concern the duty element of a negligence action; rather, the doctrine assumes the existence of a commonlaw duty of reasonable care, and the court is asked to adopt the standard of conduct set forth in a statute or ordinance (often a criminal or regulatory provision) as the standard of conduct required under that preexisting duty, so that a violation of the statute or ordinance serves to satisfy the breach element of a negligence action. In other words, a finding of negligence per se merely represents a judicial acceptance of “the legislative judgment that acts in violation of the statute constitute unreasonable conduct.”

The Stachowskis argued that a prior Court of Appeals decision, Dawson by Dawson v. Long, 546 N.E.2d 1265 (Ind. Ct. App. 1989), showed that the doctrine of negligence per se is relevant to the duty element of negligence. The Court found that Dawson was “wrongly decided” to the extent that it stood for that proposition.

When a plaintiff is arguing that a statute or ordinance defines the duty owed, then the issue is whether the statute or ordinance creates a private right of action, not whether a violation is negligence per se.

Whereas a negligence-per-se plaintiff claims that a statute or ordinance should establish the applicable standard of conduct required under an existing duty of reasonable care, the issue when a plaintiff claims a private right of action is whether the legislative body intended to establish not just a standard of conduct but a duty enforceable by tort law.

The test for determining whether a statute implicitly creates a private right of action is (1) whether the statute or ordinance was designed to protect particular individuals or the public in general and (2) whether it includes an independent enforcement mechanism. But the Stachowskis never addressed this test in their briefs, and waived that issue.

Lessons:

  1. If a statute defines a standard of care, then the violation of that statute is negligence per se.
  2. If a statute creates a duty, then it may create a private right of action.
  3. If it is unclear whether a statute creates a duty or defines a standard of care, then a litigant should argue both negligence per se and a private right of action.