Negligence Per Se Has Two Meanings, and They Should Not Be Confused; Gresser v. Reliable Exterminators, Inc.

If you are a litigator, you likely know that an act is negligent per se if it is done in violation of a statute. But this case points out that this could mean one of two different things: that the violation of a statutory duty can be enforced through a private right of
action or that the violation demonstrates a violation of a common-law duty of care. This difference can have a meaningful difference in litigation, as this case shows.

Reliable Exterminators was hired to treat a vacant house for a realty firm. Reliable used a termiticide called Dursban when treating the house but did not follow the instructions to protect against leaks.

The Gressers bought the house after it was treated. They noticed an odor but were assured it was only because the house had been closed up for a period of time. The couple’s two young children had unremitting flu-like symptoms while the family lived in the house. The smell never subsided, and the family left the home the next year. Tests showed the active ingredient in Dursban was throughout the house.

The Gressers sued Reliable for negligent application of Dursban. Reliable moved for summary judgment, which the trial court denied. On appeal, the Court held, in relevant part, that the trial court correctly denied Reliable’s motion to exclude testimony from the Gressers’ expert witness; that the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”) did not preempt the Gressers’ claims against Reliable; that Reliable owed the Gressers a common-law duty to warn them of the Dursban application; and that the Gressers’ access to punitive damages was a question of fact for trial.

On remand, the Gressers filed an amended complaint adding a claim that Reliable failed to warn the Gressers of the nature of Dursban. They then proposed an instruction to inform the jury of the legal impact of violating FIFRA. Reliable did not object to this proposed instruction before trial.

At the end of trial, the Gressers proposed an instruction explaining the legal impact of violating Indiana’s pesticide use statute. Reliable objected. The trial court decided not to give the proposed instructions, but it would permit the Gressers to argue that
Reliable’s violation of the statutory requirements demonstrated Reliable had breached its common-law duty to the Gressers. The jury returned a defense verdict, and the Gressers appealed.

The Court began its analysis by discussing the two forms of negligence per se in order to “clarify that term under Indiana law.”

To satisfy the duty element of a negligence claim, a plaintiff must demonstrate that a defendant had a duty toward the plaintiff that arose either at common law or by statute. If a defendant had an existing common-law duty of reasonable care, and if a plaintiff argues the defendant’s violation of a statute or ordinance proves the breach of that existing common-law duty, then the plaintiff has been said to be raising a negligence-per-se claim. If, instead, the defendant had no common law duty and the plaintiff asserts a statute or ordinance created a duty enforceable by plaintiff against defendant, then the plaintiff is said to be raising a private-right-of-action claim.

As then-Chief Judge Vaidik noted in 2018, these two forms of tort claim are often confused, and we have little doubt why this confusion arises – a single term has evolved to have two distinct meanings within the same area of the law. “Negligence per se” means both: (1) “the unexcused violation of a statute or ordinance[,]”which is a doctrine for proving breach; and (2) a type of tort claim in which (a) the defendant had a common-law duty of reasonable care toward the plaintiff, and (b) the violation of a
statute or ordinance is asserted to demonstrate the defendant’s failure to use the reasonable care required by the common-law duty. Having these two distinct meanings of “negligence per se” would not be a problem were it not for the fact that “the unexcused violation of a statute or ordinance” would also demonstrate breach of a defendant’s statutory duty in a private-right-of-action claim. Because negligence per se can demonstrate breach of both a common-law duty and a statutory duty, a tort action based on one of those origins of duty ought not be called a negligence-per-se claim.

After this clarification of the law, the Court addressed the arguments regarding the jury instructions. And when doing so, the Court found that while the Gressers proposed a FIFRA-related instruction before trial, they waived this issue for appellate review because they “repeatedly indicated” that they were asking for the Indiana-based instruction instead during the final instruction conference.

Reliable argued that the Gressers could not get this instruction because they “did not plead a negligent per se count [and] to put a negligence per se instruction in without pleading a statutory count, it’s not – it’s not consistent with the law.” This argument was incorrect as a matter of law. … The Gressers did not need to assert a Statutory-Duty Claim–and undertake the additional burden of demonstrating the statute provided a private right of action–in order to assert Reliable committed negligence per se that proved breach of the common law duty.

Nevertheless, the Court found that the instruction tendered “would have required additional clarification instructions and that it may have confused the jury in its proposed form.” Therefore, it held that the trial court did not abuse its discretion when refusing to give this instruction.

We should all pay attention to the Court’s distinction between the two types of negligence per se and build our arguments accordingly. While the distinction ended up not mattering in this case, one can easily envision a situation in which failing to make this distinction could result in a serious error.

Lessons:
1. There are two forms of negligence per se:

  • If a defendant had an existing common-law duty of reasonable care, and if
    a plaintiff argues the defendant’s violation of a statute or ordinance proves
    the breach of that existing common-law duty, then the plaintiff has been
    said to be raising a negligence-per-se claim. [“Common-Law-Duty Claim”]
  • If, instead, the defendant had no common law duty and the plaintiff asserts
    a statute or ordinance created a duty enforceable by plaintiff against
    defendant, then the plaintiff is said to be raising a private-right-of-action
    claim. [“Statutory-Duty Claim”]

2. To preserve for appeal the failure to give a proposed instruction, be sure that the
proposed form of your proffered instruction will not confuse the jury and, that if
any clarification is needed by another instruction, it is also proffered.

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