NEGLIGENCE PER SE II. BACKGROUND. Richard B. Kilpatrick*

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1 NEGLIGENCE PER SE Richard B. Kilpatrick* I. INTRODUCTION The Tort Reform Act of 1986 includes several sections under Part IX denominated Miscellaneous. The first of these miscellaneous sections is Section 901, which attempts to narrow the court doctrine of negligence per se. 1 This article will not deal with the constitutionality, legislative process, or wisdom of this part of the legislation, but will examine the potential effect of the negligence per se doctrine's modification. II. BACKGROUND A. Penal Laws in Civil Cases Legislatures pass a myriad of laws each year. Many of these statutes' contain express directions (thou shalt) and express prohibitions (thou shalt not), the violation of which results in some penalty, usually a fine or imprisonment. Most of these laws fail to express how they should affect civil cases between private parties. The courts, then, have fashioned the rules for dealing with the effect of such penal laws in civil litigation. The concept that civil liability should be imposed upon one who violates a statute's prohibition, at first blush, seems quite apparent and simple. However, the rationale and exposition is any- * Richard B. Kilpatrick is a sole practitioner in Bellevue, Washington where he limits his practice to plaintiff's personal injury, professional negligence and insurance law. Mr. Kilpatrick is a graduate of the University of Washington School of Law and is a frequent lecturer for the Washington State Trial Lawyers, Seattle-King County Bar Association and Washington State Bar Association. 1. Set forth infra at text accompanying note Not only statutes, but ordinances and regulations can have the force of law. These are also accorded negligence per se treatment. See Bayne v. Todd Shipyards, 88 Wn.2d 917, 568 P.2d 771 (1977). In this article, "statute" will be used to refer to ordinances and regulations as well.

2 GONZAGA LAW REVIEW [Vol. 22:183 thing but simple. Washington courts have rarely concerned themselves with why a penal statute should have effect in a civil case but have addressed how and under what circumstances such statutes should be acknowledged. While the question of why was not terribly important before, it may be important in determining whether to give effect and what effect to give this negligence per se modification. B. Negligence Per Se in Washington In Washington, the negligence per se doctrine functions under three separate, yet interrelated, concepts. The language of various opinions is sometimes unclear as to the function being addressed, since the difference in those functions may have been more academic than practically important. But now, with this Tort Reform Act, Washington's courts will have to analyze and understand the different uses of the doctrine to determine what the language of this new statute means and what effect if will have. 1. Fixing the Standard of Care Perhaps the simplest use of negligence per se is to fix a standard of care where an obligation already exists. Under the common law, duties exist to be non-negligent. Thus, the driver of a car owes a duty to pedestrians to drive with reasonable care. This obligation arises out of common law concepts pertaining to the control of dangerous instrumentalities.' The common law standard of care is a flexible one of reasonable care under all circumstances. Practically, this means that matters of disputed inferences must be submitted to juries to determine what is or is not negligent in our society. This allows differing standards to be imposed by different juries and for the standards to evolve over time. Thus it is proper to argue that going over 25 miles per hour at an intersection is not negligence at all. However, use of the negligence per se doctrine in this context allows a statutory enactment to determine or freeze this standard of care. In the auto case, then, a statute that prohibits driving over 25 miles per hour at an intersection will freeze the standard of care. It can no longer be argued to the jury that going over 25 miles 3. Roberts v. Spokane St. Ry. Co., 23 Wash. 325, 63 P. 506 (1900).

3 1986/871 NEGLIGENCE PER SE per hour is not normally negligent. The common law was the source of the duty between the plaintiff and defendant. The statutory law is then used to measure or fix what was otherwise a flexible standard of care.' Exception or justification, however is always permitted as a defense under this use of negligence per se, and in effect requires proof of negligence in the deviation from the statute. For instance, driving left of the center line is prohibited by statute, and if proved in the absence of justification, the jury would be instructed to find negligence if the driver was left of center. However, if there was justification, e.g., that a child darted onto the street in front of the defendant, then the jury must determine whether the driver was actually negligent in his actions. The jury would be instructed: The violation, if you find any, of a statute is negligence as a matter of law. Such negligence has the same effect as any other act of negligence. While the violation of a statute is, generally speaking, negligence as a matter of law, such a violation is not negligence if it is due to some cause beyond the violator's control, and which ordinary care could not have guarded against. 5 The effect of negligence per se then is to take from the jury the question of whether or not an act is reasonable, in the absence of a claimed excuse for violating the statute. However, when excuse or justification is asserted, then the question again becomes one of general reasonable care to conform to the statute, an issue to be determined by the jury. 2. Creating a New Civil Duty Another use of negligence per se is to create a duty where the common law would otherwise find no duty. For example, liability insurers have had no duty of good faith or reasonable care toward the third parties injured by their insureds and with whom the insurer deals. The enactment of administrative regulations for good faith claims practices forced our Supreme Court, in Tank v. State Farm and Casualty Co., 6 to consider whether a new civil duty was 4. Washington adopted negligence per se language as early as Roberts v. Spokane St. Ry. Co., 23 Wash. 325, 53 P. 506 (1900) ORLAND, WASH. PRAC., WPI (1967) (emphasis added) Wn.2d 381, 715 P.2d 1133 (1986).

4 GONZAGA LAW REVIEW [Vol. 22:183 created to such third parties. Tank presents a very different use of the negligence per se doctrine, and one that has not been generally distinguished in Washington from the use that fixes the standard of care for existing common law duty. 7 Under either use of the doctrine, Washington has generally followed the analysis of the Restatement (Second) of Torts, section 286, in determining whether the statute should be used in a particular case." A four-part test is applied, under which the Court must determine that: (1) the plaintiff is in the class of persons intended to be protected by the statute; (2) the statute was intended to protect the particular interest of the plaintiff that was invaded; (3) the kind of harm resulting was the type to be prohibited; and (4) the hazard that caused the harm was the type of hazard the statute was intended to address. If the situation passes the four-part test, then the statute would create a duty, although none existed at common law. Likewise, unless the statute passes this same test, it would not be used to fix a standard of care, even where a duty already existed. 3. Creating a Strict Liability As mentioned above, negligence per se can freeze a standard of conduct or create a previously unrecognized duty leaving the defendant to affirmatively prove justification. But a court may also find a statute to impose strict liability, even in the face of reasonable justification. This was the very issue in Hyatt v. Sellen Construction Co., Inc., 9 a recent construction site accident case in which the Washington Court of Appeals held that certain WISHA regulations concerning railings around floor openings were not intended to impose strict liability under the negligence per se doctrine. III. REASONS FOR NEGLIGENCE PER SE DOCTRINE The Washington courts have not generally discussed the reasons for allowing penal legislation to affect civil liability. Recently, our supreme court seemed to refer to some "intent" in regulations 7. For further discussion of Tank, see infra text accompanying notes Mina v. Boise Cascade Corp., 104 Wn.2d 696, 710 P.2d 184 (1985) Wash. App. 893, 700 P.2d 1164 (1985). For further discussion of Hyatt, see infra text accompanying notes 16 and 17.

5 1986/87] NEGLIGENCE PER SE that were in fact silent. In Tank v. State Farm & Casualty Co., 10 the supreme court was asked to find that a liability insurance company had a duty to an injured third party, arising out of the binding regulations of the Washington State Insurance Commissioner on good faith claims practices. 11 In determining whether a new civil duty should be recognized, the supreme court stated: "Moreover, we are not persuaded that it was the intent of the Insurance Commissioner in drafting these regulations to create a cause of action in third party claimant."' 2 It is usually pure fiction when a court finds an actual, implied, constructive, or presumed intent in legislation that is in fact silent on what effect it should have in civil cases. When legislation is silent, it usually means the legislators either did not have effect on a civil suit in mind at all, or deliberately omitted it. The best explanation offered by commentators for penal statutes affecting civil liability appears to be judicial deference and respect for the actions of the Legislature for what would appear to the courts to be the underlying purpose of the protective legislation. 13 This explanation would square with the Washington cases, including those in which admittedly non-applicable statutes are still admissible evidence of negligence.' IV. EFFECT OF NEW TORT REFORM STATUTE It is against this backdrop that the words of the new statute must be viewed. Section 901 in its entirety reads as follows: NEW SECTION. Sec A new section is added to chapter 5.40 RCW to read as follows: A breach of a duty imposed by statute, ordinance or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electri Wn.2d 381, 715 P.2d 1133 (1986). 11. WASH. REV. CODE (1986) authorizes the Insurance Commissioner to make such binding regulations. In view of this authority WASH. AD. CODE (1983) states that through "define[s] certain minimum standards which, if violated with such frequency as to indicate a general business practice, [are] deemed to constitute unfair claims settlement practices." 12. Tank, 105 Wn. 2d at 393, 715 P.2d at W. PROSSER & W. KEETON, THE LAW OF TORTS, 36, at 222 (5th ed. 1984). 14. Engen v. Arnold, 61 Wn.2d 641, 379 P.2d 990 (1963).

6 GONZAGA LAW REVIEW [Vol. 22:183 cal fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.' 5 Given that courts have created the negligence per se doctrine for their own purposes, there must be concern for the legitimacy of the Legislature's action in directing the courts this way. However, assuming literal effect is to be given to the Legislature's statutory directive, what effect is intended here by this language? What, at first reading, might seem a simple statute becomes analytically difficult upon examination. The rule in some states is that in civil actions where a duty exists, statutes will not fix the standard of care, but only constitute evidence of general negligence, even absent justification. If the "negligence per se" legislation was aimed at limiting a court's function of fixing a standard of care for an otherwise existing duty, then the beginning language, "[A] breach of a duty imposed by statute..." is inappropriate, since that function of negligence per se occurs in cases where the duty is created by common law. To have accomplished this result in Washington, the legislature could not and should not have referred to a "breach of a duty." Alternatively, if this statute was aimed at preventing courts from using a statute to create a duty where none existed at common law, then the reference to using the statute "as evidence of negligence" also becomes nonsensical and misleading, since the statute by its terms defines the duty. To then say that the statute's violation is evidence of negligence is to say that the statute has created a duty where no duty was owed before. The third use of the negligence per se doctrine, creating a strict liability for violation of statutes, is clearly effected by the new statute. Even when statutes are used to fix the standard of care, the issue usually remains one of general negligence for deviation from the statute. Justification or excuse is always an allowed defense. However, under one existing use of negligence per se, the court has the power to find that a set of statutes impose a strict liability in spite of all due care. This Tort Reform Statute can be interpreted as the legislature's narrowing of the areas in which a 15. Tort Reform Act, ch , 1986 Wash. Laws at 1354.

7 1986/87] NEGLIGENCE PER SE court may create a new civil duty and impose a strict liability standard. In those identified areas of electrical fire safety, use of smoke alarms, or driving while under the influence of intoxicating liquor or drugs, the court is free to find a duty created and establish strict liability. Outside those areas, the court can create new civil duties from penal statutes, so long as strict liability is not imposed (and thus the statute is offered as "evidence of negligence"). With this interpretation the limitation in the first clause relating only to those cases where the duty is imposed by statute, has effect. Also, the second clause that the statute "may be considered by the trier of fact as evidence of negligence," makes sense in the strict liability setting in that it allows reasonable justification or proof of ordinary care to excuse violations of statute. Thus, the statute would not affect the use of negligence per se to fix a standard of care. This very type of issue is considered in the 1985 cases of Hyatt v. Selien Construction Co., Inc. 16 In that case, the plaintiff was an employee of a subcontractor. The general contractor was Sellen Construction Company. Sellen retained some actual, physical control of the joint work area and was allegedly responsible for the plaintiff's fall and injuries. After a defense verdict, the plaintiff objected to the failure to give a negligence per se instruction for Sellen's alleged violation of guarding requirements for floor openings under certain WAC provisions. The court first held that since there was no evidence that the defendant Sellen had removed the cover, thereby creating the floor opening or that Sellen knew or should have known that others had removed the cover and then failed to take measures to barricade it, such an instruction could only have been given if negligence per se requires strict liability. The court determined that strict liability did not apply and that: "...the defendant need only show reasonable diligence to obey the statute or regulation offered as evidence of negligence per se. "17 In the last offered interpretation of the Tort Reform Statute, Wash. App. 893, 700 P.2d 1164 (1985). 17. Id. at 897, 700 P.2d at 1167 (emphasis added).

8 GONZAGA LAW REVIEW (Vol. 22:183 the result of Hyatt would not change but the ability of the court to have even considered imposing strict liability would have been foreclosed. In the broad sense of allowing something beyond strict liability as a defense, then any statute is offered "as evidence of negligence per se" in the words of the Hyatt court, the same words of the Tort Reform Statute. Indeed, the new statute's three exceptions are the areas in which courts, typically, have been willing to find strict liability imposed. 8 Further, it would appear to be in line with much of the expressed intent to tort reform to keep liability on a fault-based standard. In fact, reducing the use of strict liability is the very thrust of prior tort reform legislation for products liability, now codified in RCW V. PRACTICAL EFFECT If the statute is interpreted as intended to restrict the use of negligence per se in creating new civil duties that apply a strict liability, then the range of statutes in which the court could consider imposing strict liability will have been dramatically narrowed. However, no change need be made in the present Washington Pattern Instruction 9 since under current law, if ordinary care could not have guarded against a violation, then the violation is not negligence. Where such a fact pattern passes the four-prong Restatement test for negligence per se, 20 then, in the absence of justification, a jury would not be entitled to ignore the legislative standard, which is the existing law. If, on the other hand, the statute is viewed as removing the court's ability to define a fixed standard of care, even in cases where common law created the duty, then existing WPI would not be an accurate statement of the law. Further, summary judgments supported by the negligence per se doctrine would no longer be permissible on such grounds, the court would have to face the further question of whether or not this new "evidence of negligence" created presumptions of negligence shifting the burden 18. See Prosser supra note 13, at See supra text accompanying note See supra text accompanying note See supra note 5 and accompanying text.

9 1986/87] NEGLIGENCE PER SE of proof, or otherwise."' Whatever interpretation the court gives, the failure of the Legislature to carefully draft the intended outcome of this attempted modification of negligence per se, only leaves the court adrift with a legislative enactment clearly in derogation of common law. For that reason alone, the least expansive reading of this statute reasonably permissible should be adopted. 22. See Prosser, supra, note 13, at 230; see also Lee & Eastes, Inc. v. Continental Carriers, Ltd., 44 Wn.2d 28, 33-34, 265 P.2d 257, (1953).

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