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Understanding the Classes Applicable to a Negligence Per Se Claim

In a recent appellate decision the issue of whether the trial court erred in not giving negligence per se jury instruction was examined. In general negligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute or regulation. Florida like other states delineates different categories of statutory or code violations that would result in a negligence per se case.

This issue was addressed in a recent case, Vitrano v. Fla. Power & Light Co., So. 3d, 40 FLW S732 (Fla. 4th DCA 3-25-2015). In the Vitrano case the defendant power company advised the homeowner that they would trim trees which were located near the power lines. The homeowner passed on the offer and advised that they had already contacted and contracted for a tree trimming service.

During the service on the homeowner’s property the contractor was killed, believed to be by electrocution. The deceased estate brought a wrongful death case against the power company alleging that the defendant was negligent by permitting the trees to grow up and through the power lines and then for failing to trim or maintain the trees near the power lines. The plaintiff alleged that the power company violated a statute or code under NESC and asked for a negligence per se jury instruction from the trial court.

The trial court denied the request and the jury returned a finding of no negligence on part of the defendant. As a result the appeal ensued.

The appellate court upheld the trial court decision and applied previous Supreme Court holdings that addressed how negligence per se claims only apply to “a particular class of persons”. In the holding the court pointed out that the trial court was correct in concluding the NESC provisions were not intended to protect the particular class of persons such as the plaintiff.

During civil litigation all avenues of recovery must be addressed and explored for the client with an understanding of how some rules or laws will not apply to every claim.

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