Negligence Per Se in Ohio: Why Not Every Rule Violation Automatically Wins the Case

Published June 16, 2010 · Ohio Appeals Courts

A motorcyclist riding through a Springfield park hits an unpaved trench left behind by a construction crew, loses control, and is hurt. The contractor had a city permit with rules printed on the back, and a city ordinance said the contractor stayed responsible for the excavation until it notified the city in writing that the work was done. The contractor did neither. Open and shut, right?

A Clark County jury thought so and awarded the rider $44,000. Last month the Second District Court of Appeals threw out the verdict. The case is Kooyman v. Staffco Construction, Inc., 189 Ohio App.3d 48 (2d Dist. 2010), and the reason it was reversed teaches something every injured person should understand about how fault is proven in Ohio.

What happened on Cliff Park Drive

In March 2005, Staffco Construction obtained a permit from the city of Springfield to dig three small trenches across Cliff Park Drive in Veterans' Memorial Park. The crew laid pipe, backfilled the trenches with gravel, and the city reopened the road before it was repaved. On May 31, 2005, Gregory Kooyman lost control of his motorcycle near one of the unpaved trenches and was injured.

Kooyman sued. Before trial, the judge ruled that Staffco was "negligent per se" because it had violated a city ordinance and the regulations on its permit, and that its negligence caused the crash. The only question left for the jury was how much to award. After a one-day trial, the jury said $44,000.

What "negligence per se" means

In an ordinary negligence case, the injured person has to prove four things: the defendant owed a duty of care, the defendant breached it, the breach caused the injury, and damages resulted. The "breach" question is usually the hard one, because the jury has to decide what a reasonably careful person would have done.

Negligence per se is a shortcut on that question. When a statute or ordinance commands or forbids a specific act for the safety of others, and the defendant violated it, the violation itself establishes the breach. The jury does not have to debate reasonableness; it only decides whether the defendant did the prohibited thing.

The classic example is Ohio's assured-clear-distance rule. R.C. 4511.21(A) says no one may drive "at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead." A driver who rear-ends a stopped car has violated a specific command, and Ohio courts treat that as negligence per se. The same is true of running a red light or failing to yield at a stop sign.

Even then, the shortcut covers only breach. As the Second District pointed out, the plaintiff still has to prove that the violation caused the injury and what the damages are.

Why the verdict was reversed

Judge Froelich's opinion for the court began with the principle that decides the case: "Not every violation of a provision of law or ordinance constitutes negligence per se." The Ohio Supreme Court has long drawn a line between rules that command a specific act and rules that set a general standard of care. Only the first kind supports negligence per se. When a rule says, in effect, "be careful" or "do a proper job," the jury still has to decide what careful meant under the circumstances.

The Springfield ordinance the trial judge relied on fell on the wrong side of that line. It required a contractor to notify the city in writing when the trench was ready for repaving, and it kept the contractor liable to the city for damage until the city took over. The appeals court read that as a provision allocating responsibility between the city and the contractor, something like an indemnity clause, not a safety command directed at protecting the public. It could not establish negligence per se.

The regulations printed on the permit application had a different problem. They were written by the city's engineering department, not enacted by the city council or the General Assembly. Ohio courts have held that administrative rules cannot create negligence per se, because allowing agencies to change the proof requirements in lawsuits would hand them legislative power. A violation of those regulations can be evidence of negligence that a jury may consider, but it does not decide the question.

Finally, the court held that causation should never have been taken from the jury. City workers had testified that the backfill was inspected before the road reopened and that no one had complained, while Kooyman testified that the trench had a depression, was shaded by a tree, and had not been maintained. That conflict is exactly what trials are for. The case was sent back for a new trial on negligence, causation, and damages.

The lesson for injured riders and drivers

It is tempting to read Kooyman as a case about a technicality. It is not. It is a case about building the proof correctly from the beginning.

The rider in this case had a real injury and a real hazard. The problem was that his case was tried on the theory that a paperwork violation ended the argument, and when that theory failed on appeal, there was no fully developed record of ordinary negligence to fall back on. A case prepared the other way, with the permit violations offered as evidence of carelessness alongside photographs of the trench, testimony about signage and barricades, the construction industry's own standards for leaving an excavation open to traffic, and an expert on the handling characteristics of a motorcycle over a gravel depression, would have given the jury everything it needed under either theory.

That is why the choice of lawyer matters in motorcycle cases specifically. Riders already face skepticism from adjusters and some jurors. A case that depends on a jury instruction the appeals court may later reject is a case built on sand. Our motorcycle accident page explains how we approach these claims, and the same principles apply to car and truck crashes involving road construction.

What this means for you

If you were hurt because of a construction zone, an unmarked excavation, or a road hazard a contractor left behind, do not assume that the contractor's permit violations will carry your case. They help, but the case has to be proven as ordinary negligence too, and the evidence for that must be gathered before the road is repaved and the crew moves on.

Photograph the site immediately, from the rider's or driver's approach, in similar light. Find out who held the permit and get a copy. Identify witnesses who saw the condition before the crash. And talk to a lawyer well inside the deadline we discussed in our post on Ohio's two-year injury limit, because reconstructing a road hazard a year later is far harder than documenting it a week later.