Legal Memorandum: Negligence Per Se in KS

Issue: What are the elements of negligence per se under Kansas law? ![TEXT:

Under Kansas law, in order to prove negligence per se, the plaintiff must show: (1) a violation of a statute, ordinance or regulation; and (2) that the violation is the cause of the damages resulting therefrom.  See, e.g., Short v. Ultramar Diamond Shamrock, 46 F. Supp. 2d 1199, 1200 (D. Kan. 1999); Stewart v. South Kansas & Okla. R.R.., 36 F. Supp. 2d 919, 921 (D. Kan. 1999); United Cities Gas Co. v. Brock Exploration Co., 995 F. Supp. 1284, 1291-92; Stewart v. Nationalease of Kansas City, Inc., 920 F. Supp. 1188, 1198 (D. Kan. 1996).

Violation of a statute, ordinance or regulation is not sufficient alone, however, to establish negligence per se.  A plaintiff must also establish that an individual right of action for injury was intended by the legislative body that passed the ordinance.  To determine this, courts look at whether the statute creates a duty to individuals or whether it was enacted to protect the public at large.  See, e.g., Short, 46 F. Supp. 2d at 1200 (dismissing plaintiff’s claim of negligence per se on grounds that RCRA and Kansas Solid Hazardous Waste Act do not provide plaintiffs with a private action for damages); Stewart, 36 F. Supp. 2d at 921(allowing negligence per se argument where court found that plaintiff was within the specific class intended to be protected by railroad speed limit regulation); Stewart, 920 F. Supp. at 1198.

Kansas law is consistent with the position of the Restatement (Second) of Torts.  Section […]