122 P.3d 308
• The District Court of the Seventh Judicial District, Bingham County, Idaho, granted summary judgment in favor of appellees, county, county commissioners, and county public works (county) on appellant guardians’ suit against the county alleging that the landfill where their children were killed was an attractive nuisance and that the county breached legal duties to control access to the landfill. The guardians appealed.
• Children were killed in a landfill which wasn’t fenced in while playing.
• If you violate a statute and fulfill all four duty elements is it negligence per se?
• If you violate a statute and fulfill all four duty elements it IS negligence per se. The jury would only decide causation and damages.
• Generally, the question of whether a duty exists is a question of law, over which the appellate court exercises free review. Negligence per se, which results from the violation of a specific requirement of law or ordinance, is a question of law, over which the appellate court exercises free review
• The elements of a common law negligence action are (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.
• In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury.
• In Idaho, it is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligence per se. A court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation. The effect of establishing negligence per se through violation of a statute is to conclusively establish the first two elements of a cause of action in negligence. Negligence per se lessens the plaintiff’s burden only on the issue of the actor’s departure from the standard of conduct required of a reasonable man. Thus, the elements of duty and breach are taken away from the jury.
• The judgment was vacated and the case remanded for further proceedings.
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