Answer To MBE Question From December 7th
(D) is correct.
Issue: Whether the pedestrian can recover under negligence per se against the truck driver.
Rule: Negligence per se applies if a statute codifies a duty for the benefit of a class of people. Statutes can create a special duty of care in addition to or in place of the general duty of care under the “reasonable person standard”. A statute (criminal or civil) will give rise to a special or specific duty of care and render a defendant liable to plaintiff in negligence if the statute itself is clear and unambiguous, it specifies exactly what conduct or duty is required, it identifies a class of persons who owe the duty, and it sets forth conduct that establishes fault. It also must appear that the legislature sought to prevent the type of injury actually suffered by the victim; that is the victim is a member of the class of persons intended by the statute to be protected.
If the elements above are met, violation of a statute is negligence per se, meaning that the elements of duty and breach are established. Therefore, the defendant cannot argue she acted reasonably or did not have a duty. However, the plaintiff still must prove causation and damages, and defenses to negligence apply.
The following are excuses for violating a statute: (i) The violation is reasonable due to the defendant’s incapacity; (ii) The defendant is confronted with an emergency not due to his own misconduct; (iii) Compliance with the statute would cause more danger than violation (e.g., the defendant drives onto wrong side of road to avoid hitting children who dart into his path); or (iv) Compliance would be beyond defendant’s control. This applies if a statute codifies a duty for the benefit of the defendant (e.g., a blind pedestrian crosses against the lights and is a defendant in the resulting action).
Analysis: Here, the traffic law clearly specifies that cars cannot block the crosswalk for pedestrians. The injury suffered by the pedestrian – being hit by a car while having to walk outside of the crosswalk to get around the truck – is exactly the type of injury that the statute contemplated and sought to protect against. The truck driver has no excuse for stopping in the crosswalk under the facts given. Thus, the truck driver’s violation of the law can be considered a breach of duty (i.e., negligence per se).
(D) is correct because the law is intended to protect pedestrians crossing the street.
(A) is incorrect because though the car is also a cause of the injury, this will not absolve the truck driver from liability.
(B) is incorrect because at most the pedestrian might be found to be partially negligent which will affect the apportionment of damages in a comparative negligence jurisdiction (remember that the default rule on the MBE is pure comparative negligence). However, defendant will not be relieved of liability.
(C) is incorrect because violation of a statute does not lead to strict liability; the elements of negligence per se must be applied to the facts to determine whether the plaintiff is part of the protected class and whether the injury that occurred is of the type that the statute intended to prevent.