“The Virgin” – Negligence per se

When Ping the delivery boy swerves his bike out of the way and crashes into a parked car to avoid hitting Elaine in the crosswalk, he hurts his head and, more upsetting to George, loses the delivery order, except for the pea pods. Is Elaine at fault for Ping’s crash? Can Ping successfully sue Elaine?

Marla and I went out for coffee, and I was crossing the street.

(Editor’s Note: Last week we discussed whether Ping could bring his lawsuit a second time, after he had withdrawn it the first time.)

Elaine certainly didn’t intend for Ping to crash his bike, and therefore we will have to analyze this issue as an involuntary tort. We explored negligence in a prior post, and we will ask that same question here: is Elaine at fault, under a negligence theory, for Ping’s injuries?

Negligence per se is the legal principle that establishes when a defendant has violated a law, the defendant is automatically going to be considered negligent and at fault for the damages incurred if: (1) the law violated was designed to protect the injured party and (2) the injury caused is the kind of injury the law was enacted in order to protect against.

Driving through a red light or speeding are both good examples of where negligence per se would apply. Those kinds of cautions are put in place to (1) protect pedestrians or other motorists from (2) being injured by a vehicle. Ironically, this is the inverse of the situation Ping and Elaine find themselves in. Had Ping biked through a red light and struck Elaine while she was walking through the crosswalk (not jaywalking), then this would be a clear cut case of negligence per se and Ping would be at fault.

The problem here is that it is Elaine who is violating the traffic rule here by allegedly jaywalking. The question then becomes, what is the purpose of the anti jaywalking rule? Is it protect motorists or bikers from a renegade jaywalker? Or is it to protect the jaywalker themselves? To fully determine this, we would have to investigate the legislative record to fully determine why the jaywalking laws were put into place to begin with. Ping’s suit against Elaine really hinges on this question. If the jaywalking laws are there solely to protect the pedestrian, then the fact that Elaine was jaywalking would have very little to do on the tort analysis. But if such a traffic law is designed to protect all parties, pedestrians and motorists, then it would weigh heavily in Ping’s favor.

No, no, I have green light. You jaywalk.

An additional problem for Ping arises from Elaine’s counter accusation that Ping was speeding on his bike. If Ping himself was violating the traffic law by biking too fast, then even if he had a green light and Elaine was jaywalking, Ping might be found to have been “contributorily negligent.” This concept means that even though Elaine might have been negligent (either by the per se principle or by other), Ping was too! In other words, the plaintiff “contributed” to the plaintiff’s own damages. Therefore, the final judgment against Elaine would be reduced because of Ping’s own fault. Depending on the jurisdiction, this could either result in a smaller judgment being awarded to Ping, or even none at all if he was fault to have been sufficiently negligent himself.

Overall, despite Cheryl’s confidence in “The Visa,” we don’t have a lot of factual information to go on to fully determine if a court would find Elaine to have been at fault. And, even if she was found to be negligent herself, it’s pretty likely that a court would find Ping to have been contributorily negligent as well, and offset any final judgment against Elaine by a considerable percentage. The bigger issue for Elaine in this case may end up being appeasing George for the missing Chinese food.

Something happened to the food?

Leave a Reply