Does The Violation Of Every Law Create A Private Cause Of Action As Negligence Per Se?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Pullen v. West, 278 Kan. 183, 92 P.3d 584 (2004).
This case addresses the following issue:
Does negligence per se create a private cause of action for the violation of every law?
This case determined whether the Kansas Fire Safety and Prevention Act could be the basis of a negligence per se claim. Id. at 193. Applying the two-prong test of Nora H. Ringler Revocable Family Trust v. Meyer Land & Cattle Co., 25 Kan. App. 2d 122, 958 P.2d 1162 (1998), the court found that the statute at issue failed each prong. Id. at 195-96. First, the statute was “designed and written to protect the public at large,” rather than a specific group of people which includes the plaintiff. Id. at 195. Second, there was no indication that the legislature intended for a private right of action to arise from the law. Id. at 196.
This case arises from a fireworks accident occurring at an Independence Day party. Id. at 186. At the party, there was to be a fireworks display. Id. at 187. The fireworks being used were “commercial class B fireworks” that were not sold to the general public. Id. Several regulations, promulgated pursuant to Kansas Fire Safety and Prevention Act, applied to the use of fireworks in this class. Id. The defendant did not follow these regulations in using the class B fireworks. Id. Plaintiff was hit by a firework that failed to properly exit the illegal firing tube. Id. at 188. Plaintiff suffered severe injury, including burns, nerve damages, and insertion of a steel plate in his head. Id.
The court began by determining which law was available for a negligence per se claim. Id. at 194. Though several regulations, promulgated pursuant to the Kansas Fire Safety and Prevention Act, had been violated by the defendant, the court found that it was the enabling statute itself that must be the metric for a negligence per se claim. Id. at 194-95.
Having established what law was being analyzed, the court formally adopted the two-prong test first created by the Kansas Court of Appeals in Ringler. Id. at 194. The first prong requires “that the statute was designed to protect a specific group of people rather than to protect the general public.” Id. The next prong requires that “the court review legislative history in order to determine whether a private right of action was intended.” Id. The court noted that it was the legislature, not the administrative agency tasked with promulgating and enforcing regulations that was the focus of the second prong. Id. at 195.
Looking at the Kansas Fire Safety and Prevention Act, the court found that neither prong was satisfied. Id. at 196. The Act was designed to protect the general public: audiences of fireworks displays and “assistants in the discharge of fireworks” alike. Id. The “scope of this enabling legislation is very broad” and generally applicable to all individuals. Id. at 197. As for the second prong, there was no evidence that the legislature intended for any liability to arise from violations of the Act, aside from criminal penalties. Id. at 199. Without any indication that civil liability was meant to follow from a violation of the act, negligence per se was not viable for this statute. Id.