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44 Wake Forest L. Rev. 979 (2009)
Expanding Liability for Negligence Per Se

handle is hein.journals/wflr44 and id is 989 raw text is: EXPANDING LIABILITY FOR NEGLIGENCE PER SE Ariel Porat* INTRODUCTION A breach of a statutory duty that results in harm often gives rise to tort liability for the injurer toward the victim under the doctrine of negligence per se. Under this doctrine, not all victims can recover and not all types of injuries are compensable. For the tort suit to succeed, the victim must fall within the class of persons protected by the statute and the injury must be of the type that the statute was intended to prevent.' These two conditions, which I call the limiting liability conditions, generate controversy and litigation since it is not always clear which victims or which injuries the legislature intended to address when enacting the particular statute in question. The normative argument this Article makes is that the weight given to the limiting liability conditions should be dramatically decreased. Whenever noncompliance with the statute increases the risks to the class of persons to which the victim belongs or of the type of injury the victim suffered and those risks are foreseeable, there is a strong prima facie case for recognizing liability. This should hold true even when the risks that materialized are usual, or background, risks that in themselves would not justify the enactment of the statute. The positive argument made here is that many court decisions that apply the limiting liability conditions to exclude tort liability reach the right outcome but for the wrong reason. These are cases in which the breach of the statutory duty did not increase the risk to the victim's class or of the type of injury that resulted. This lack of * Alain Poher Professor of Law, Tel Aviv University and Fischel-Neil Distinguished Visiting Professor, University of Chicago. For helpful comments, I thank Ronen Avraham, Oren Bar-Gill, Lee Anne Fennel, Michael Green, Ehud Guttel, Assaf Jacob, Roy Kreitner, Saul Levmore, Rivka Peltz, Timna Porat, Roni Schocken, Kenneth Simons, and the participants at the 2009 annual meeting of the Israeli Law and Economics Association and the Law and Economics workshop at Bar-Ilan University. I also thank Irit Brodskly for her very able research assistance and Dana Rothman-Meshulam for her superb language editing. Lastly, I thank the Wake Forest Law Review Editorial Board for their careful editorial assistance. 1. See infra Part I. 979

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