Redundant Negligence Per Se Standard is Harmless Error: D.C. Cir.

By Aditi Mukherji, JD on July 08, 2013 | Last updated on March 21, 2019

In a case that illuminates the tension between negligence and negligence per se standards, the D.C. Circuit Court of Appeals heard a case concerning a Washington Metropolitan Area Transit Authority (WMATA) bus.

In the ruling, the court made clear that when a jury incorrectly uses the standard of negligence per se rather than negligence, the distinction doesn’t matter unless it would result in a material difference in the case. The case serves as a good lesson for law students (and a nice refresher for practitioners) on the harmless error rule.

Margaretta Sibert-Dean was injured when the WMATA bus on which she was riding struck a car. Evidence at trial showed that the bus hit the car because the driver was distracted by a gaggle of teenage girls. [Insert your "dirty old man" joke here.]

On appeal, WMATA insisted that the district court erred in instructing the jury that it must treat the driver's violations of two District of Columbia traffic regulations as negligence per se, rather than as evidence of negligence.

Harmless Error

Harmless error happens when the ruling during a trial is erroneous, but that error would not otherwise prejudice the case. As a result, harmless error isn't a reason for the judgment to be overthrown.

The losing party to a case usually appeals the lower court decision, citing an error of law and claiming that it led to an incorrect outcome. At that point, it's in the appellate court's hands to determine whether the error was serious enough to warrant overturning the case. At its core, courts look at whether the error influenced the decision and whether the error can be seen as harmless or prejudicial.

Negligence Per Se v. Negligence

In this case, the WMATA's argument for error is that the negligence per se standard actually just regurgitates the common law negligence standard itself. Since the negligence per se rule only reiterates the common law duty of reasonable care, the jury should've been instructed on standard negligence.

Indeed, the court noted, the reason that many jurisdictions don't apply the doctrine of negligence per se to statutes that simply duplicate the common law duty is that in such circumstances the negligence per se rule is a needless analytic fifth wheel.

The WMATA argued that using the wrong standard created prejudice.

But the court didn't care, precisely because it was just a redundant standard, not a prejudicial standard. If the negligence per se instruction was erroneous only because it was redundant, then the error can't be prejudicial -- even the right standard (regular negligence) would lead to the same result.

As the court sums it up:

Because giving a negligence per se instruction with respect to a statute or regulation that merely restates the common law standard is redundant rather than harmful, it is unsurprising that WMATA cannot cite a single case in which any court in the District of Columbia has reversed a trial court for erroneously doing so. This case will not be the first.

Oh, snap.

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