IS EVERY VIOLATION OF THE FMCSR A NEGLIGENCE PER SE VIOLATION?
Recently I have seen many plaintiff lawyers trying to claim that the defendant truck driver or trucking company is liable, as a matter of law (Negligence Per Se), for technical violations of the Federal Motor Carrier Safety Regulations. I believe this is an incorrect approach and would strongly encourage lawyers to think through their position before giving judges a chance to make bad law.
In order for a violation to be a negligence per SE violation, requiring the court or the jury to find the defendant at fault as a matter of law, they must find:
(1) "the defendant violated a statute or ordinance which ‘imposes a duty or prohibits an act for the benefit of a person or the public;"
(2) “the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance;" and
(3) “such negligence was the proximate cause of the injury.”
Technical violations of the FMCSR, while satisfying prongs 1 and 2, don't satisfy prong 3. Save your ammunition for issues that will make a difference in your case.
