What is the Difference Between Negligence and Negligence Per Se?

Although negligence and negligence per se sound similar, they are two different legal theories that involve different standards of proof. It is important to understand the difference between the two. 

If you believe you’ve suffered damages due to the negligence of another, contact a personal injury lawyer for help.

What is Negligence?

Negligence is the failure to use reasonable care which results in injuries or damages to another person. Negligence is a legal theory that allows an injured person to be compensated for the carelessness of others. A person is negligent if they are careless considering the circumstances of a particular situation. 

How is Negligence Proven?

Negligence has four key elements that must be shown to recover compensation for injuries. Those elements are:

All of the above need to be proven to successfully determine that another party was negligent. Even if these four elements are shown and negligence is established, a defense might mitigate the amount a defending party must pay.


A duty is a responsibility one person owes to another. Duties are based on law, custom, or relationships. All people owe a duty of “reasonable care” to avoid harming others. Reasonable care is the care an ordinary and prudent person would use in a similar situation. 


A breach is a violation of the duty element. A breach occurs when a person fails to act with the level of care that a reasonable person would have used in a similar situation. 


The breach of a duty must be the cause of injury. You must show that the negligence caused your injuries. The basic legal tests for causation are the “but for” test and foreseeability. With the but-for test, a party must prove that their injuries would not have occurred “but for” the defendant’s negligence. However, their injuries must have been foreseeable for the defendant to be liable.


If you do not sustain some sort of harm, you cannot recover money for your negligence claim. Damages may include non-economic damages or economic losses.

What is Negligence Per Se?

Negligence per se is a legal concept designed to protect the public from harm. The main basis for liability under negligence per se is the violation of a safety statute. In negligence per se cases, a plaintiff argues that a defendant’s negligence is obvious because they broke the law. 

Proving negligence per se is usually easier than in typical negligence cases. It is often easier for a victim to receive compensation for damages under negligence per se because it eliminates the need for a judge or jury to decide whether the defendant was reasonable in their actions. In other words, there is a presumption of negligence. 

To prevail on a negligence per se argument, you must prove:

  • You sustained an injury
  • The defendant violated a safety law
  • The law was intended to prevent the type of injury you sustained

A negligence per se example would be injuring another person in a car accident while driving 30 miles per hour over the speed limit. The violation of speeding laws would create a presumption of negligence.

Are There Defenses to Negligence Per Se?

A defendant may have a defense to negligence per se laws if they can prove:

  • It would be more dangerous to comply with the statute rather than violate it
  • Complying with the statute was impossible

The defendant can sometimes avoid liability based on comparative negligence allegations. These defenses can be raised if a plaintiff shares fault for their injuries.

Do I Need a Personal Injury Lawyer for Negligence Per Se Disputes?

If you have been injured in Clearwater, FL, contact a personal injury lawyer immediately. You may be able to recover compensation under negligence or negligence per se theories. An attorney will explain your rights and help you learn your options for recovering compensation.

Contact the St. Petersburg Personal Injury Law Firm Of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers for Help

For more information, please contact the Clearwater and St. Petersburg personal injury law firm of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers at the nearest location to schedule a free consultation today.

We serve in Pinellas County, and its surrounding areas:

Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – Clearwater
1875 N Belcher Rd. STE 201,
Clearwater, FL 33765,
United States
24 hours

Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – St. Petersburg
2560 1st Ave S,
St. Petersburg, FL 33712,
United States
24 hours
(727) 349-1728