Negligence vs Negligence Per Se and Your North Carolina Personal Injury Case

While the terms “negligence” and “negligence per se” sound strikingly similar, they are, in fact, two very different legal theories that deal with very different burdens of proof. If you plan on filing a North Carolina personal injury claim, it is important to know what differentiates one from the other. 

Which burden of proof applies to my personal injury accident?

If you have sustained injuries and other damages caused by someone else’s negligence, you might be entitled to collect financial compensation from the at-fault party. Reach out to the North Carolina personal injury lawyers at Shapiro, Washburn & Sharp. We can explain your civil rights, and outline all potential avenues for recovery in a free case evaluation. 

What is Negligence?

In legal terms, negligence occurs when one person fails to exercise reasonable care and that failure causes injuries or damages to another person. The legal theory of negligence makes it possible for an injured victim to be monetarily compensated for the recklessness or carelessness of others.  

How Can I Prove Negligence in My North Carolina Personal Injury Case?

car accident

There are four fundamental elements that have to be proven in order to collect financial compensation for damages. Those four elements are:

  • Duty
  • Violation
  • Causation
  • Damages

All four of these elements have to be proven individually in order to prove negligence as a whole. Often, even after the four elements have been established and negligence is proven, the defense will attempt to mitigate the total damages the defending party is ordered to pay.


Duty is the responsibility that one individual owes to another. Duties are predicated on relationships, customs, or law. Everybody owes a duty of reasonable care to avoid causing harm to others. Reasonable care is the degree of caution or prudence that an ordinary person would have shown under the same or similar circumstances. 


A violation is a breach of the duty element. A violation takes place when an individual fails to show the same degree of care that a sensible person would have exhibited in the same situation. 


The violation of duty has to be the cause of injury. Victims are required to prove that the respondent’s negligence caused their injuries. There are two standard benchmarks for causation: foreseeability and the “but for” test. Using the but-for test, the victim must show that they would not have been injured “but for” the negligence of the respondent. For the respondent to be liable, however, the victim’s injuries must also have been foreseeable. 


Victims will not be able to recover compensation for their negligence claim unless they sustained some type of damages, either economic or non-economic.  

What is Negligence Per Se?

The legal concept of negligence per se was devised as a way to protect the general public from harm. Under negligence per se, the cornerstone for liability is the breaking of a law. In cases involving negligence per se, the claimant is arguing that the respondent’s negligence is evident due to the fact that they broke the law. 

Proving negligence per se is often more straightforward than a typical negligence case. It is usually easier for the victim to be awarded financial compensation for damages using negligence per se since it quashes the need to have a jury or judge decide whether or not the respondent showed due care in their actions. In other words, the respondent’s negligence is presumed. 

To present a successful argument for negligence per se, the victim will need to show that: 

  • They were injured
  • The respondent was in violation of the law 
  • The law they violated was designed to prevent the injury you sustained

For example, if one person injured another in a car accident while they were driving 50 miles per hour over the posted speed limit, the violation of driving laws would form a presumption of negligence.

Do I Need a North Carolina Personal Injury Lawyer for Negligence Per Se Disputes?

If you were injured in a North Carolina personal injury accident, you should let an experienced North Carolina personal injury lawyer from Shapiro, Washburn & Sharp review your potential claim. Call (833) 997-1774 to schedule your free consultation with our legal team today. 

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