Law & Economics Working Papers
In order to succeed in a tort suit under negligence per se, a victim must be of the class of persons protected by the statute and his injury must be of the type that the statute was intended to prevent. Referring to them as "the limiting liability conditions", this Article calls for a diminishment of their role in determining liability in torts. It is argued that whenever non-compliance with a statutory provision increases risks to the class of persons the victim belongs to or of the type of injury the victim suffered and those risks are foreseeable, there is a strong prima facie case for recognizing liability. This is valid even when the risks that materialized are usual, or background, risks that in themselves would not justify the enactment of the statute. The Article also shows that many court decisions that applied the limiting liability conditions and excluded tort liability because the conditions were not met could have reached the same outcome but on different grounds. Finally, the Article extends its normative argument to common law negligence.
Ariel Porat, "Expanding Liability for Negligence Per Se" (John M. Olin Program in Law and Economics Working Paper No. 485, 2009).