In previous posts we have looked at how a drowning accident can occur and the steps that should be taken by property owners to reduce the chances of such accidents. Today we will take a look at one of the legal doctrines that a drowning accident lawyer may use to establish a claim of negligence in a drowning accident. This doctrine is known as “negligence per se” (negligence “in or of itself”).
Negligence per se is defined as a proof that negligence has occurred because someone has not complied with a statutory law that carries a criminal penalty if violated. In order to establish an argument of liability by negligence per se for a drowning accident, a drowning accident lawyer must usually demonstrate the following facts:
An example of how negligence per se, as defined by the facts listed above, can apply to a drowning accident is as follows:
- there was a law that the defendant (the person being sued) violated,
- the law provides for a criminal penalty if it is violated,
- by violating the law the defendant caused an injury that the law was intended to prevent, and
- the plaintiff (the person bringing the lawsuit) was a member of the class of people that the statute was written to protect.
The State of New York has a law requiring that all new in-ground swimming pools must be surrounded by a four-foot high fence that is secured with a childproof, self-closing gate. Failure to comply with this law can be prosecuted as a misdemeanor. A contractor installs a new swimming pool but does not install a gate that meets the regulation’s requirement. A child later enters the swimming pool while no one else is present and drowns.
In the above example, Facts #1 and 2 are proved by the existence of a New York law that, if violated, could result in a conviction for a misdemeanor. Since the law was written with the intent of preventing accidental child drownings, and a child drowned as a result of the contractor’s failure to install a childproof gate, Fact #3 is also true. Fact #4 is proved when the parents or legal guardians bring the lawsuit on behalf of the deceased child, who was a member of broader class of children who were supposed to be protected by law from accidental drowning. The fact that the contractor installed a gate that did not comply with the state’s regulations could therefore be used by a drowning accident attorney to establish a claim of negligence per se against the contractor.
It is tempting to define negligence per se as “a lack of of plain, old-fashioned, common sense.” While that definition could certainly apply, establishing a claim of negligence per se first requires that there be some established standard that should be observed by everyone. This requirement eliminates the possible defense of “what’s common sense to you is not common sense to me” being raised by the contractor in the above example.
The doctrine of negligence per se can be interpreted and applied differently by the civil courts of each state. As an example, some courts will hold that negligence per se is all that is needed to prove liability for an accidental drowning while another state’s courts will require additional supporting evidence. Your state’s interpretation of this doctrine will be known to your drowning accident attorney.
In summary, negligence per se is the legal doctrine that a failure to comply with a law can be used to establish liability in a personal injury case if such a failure to comply could result in a criminal penalty. There is no requirement that a criminal prosecution must take place, only that the failure could result in prosecution.
Negligence per se and the Drowning Accident Lawyer
Drowning accidents are a leading cause of death or disability in children under five years of age, and remain a significant health and well-being concern into the teens and young adulthood. Although the shock of the death of a child can take years to resolve, the fact that a drowning death could have been prevented makes a death even harder to accept.
Those that have experienced the death or serious injury of a child or family member, and have reason to suspect that the negligence of another was the cause of their family member’s accident, should discuss their concerns with a drowning accident attorney. A drowning accident attorney will review the available facts to decide if an accident was due to negligence and, if so, the legal options that are available to the surviving family members. If the available facts indicate that negligence was involved in a drowning death or injury, a lawyer may suggest that a lawsuit be brought against those believed to be responsible.
Should you decide that a lawsuit is the proper course of action, you should not worry over the costs that may be required to bring a drowning accident lawsuit. Although such costs can be substantial, practically all drowning accident lawyers will represent your interests in the lawsuit on a contingency fee basis. This means that he or she will assume the costs associated with the lawsuit in return for an agreed-upon percentage. For families with limited financial resources, these contingency fees represent an opportunity to see that justice has been served in the matter of their tragic loss.