beach_terror wrote:Quick negligence per se question:
Okay so lets say someone complies with a statute, and even though they have complied with it, someone is injured (building a fence around a pool that's 4 feet high and a child climbs over and drowns). For the lulz, lets say the person lives next to a daycare center for children who have Steven Seagal like ability for breaking into things.
Now, it's clear that there was no statutory violation here, but the E&E suggests that meeting the statutory minimum is not the equivalent of meeting the reasonable standard of care. In effect, doesn't this just become an issue of ordinary negligence, not negligence per se? Glannon doesn't give a clear answer, but this is logically what seems to make sense. The statute wasn't violated, but the conduct was still unreasonable, so there's redress through ye old negligence doctrine, correct?
Well, that would appear to not be negligence per se, as there's no statutory violation. So yes, once you've determined that there is no negligence per se (which just gets you over the duty and breach hurdles, not the causation and injury hurdles) you do the analysis for ordinary negligence. Simply meeting a statutory minimum doesn't make one reasonable, PARTICULARLY when you're talking about children.
A person can be liable to children in a way that they wouldn't be liable to adults. Having an attractive nuisance on your property (like a pool, potentially) essentially creates an affirmative duty in the property owner. If the property owner:
1) knows there are children in the area
2) knows that the condition may cause serious bodily harm the danger of which a child would not appreciate
3) the cost of eliminating the danger is low compared to the risk involved, and
4) the owner did not exercise reasonable care to prevent children
Then the property owner might be liable for that child's injuries. So the question I'd ask is if a four foot fence is enough to keep kids out of the pool (or should he have had a pool cover) and how old was the kid? If we're talking super young, too young to appreciate the danger, and a four-foot fence isn't "reasonable care", then the property owner would be liable. Pools are generally held to present OBVIOUS dangers, so this analysis depends on the age of the kid.
Under a straight negligence analysis, I'd probably do the hand formula -- the burden of having a pool cover or a higher fence is likely to be low given the likelihood of kids from a daycare trespassing on your property and the chance one of them would drown.
That's my thought, anyway. Someone else could come along and tell me I'm an idiot.