Standard of Care and Negligence Per Se (Moloney vs. Becker, COA, PUB, 4/19/2013)

The published decision by the Court of Appeals in Moloney vs. Becker is just chock full of stuff.  In addition to the standard of review law on motions for JNOV and directed verdict, we have a little legal rif on negligence per se and the “standard of care”.

ESTATE OF MABEL C. MOLONEY VS. BECKER
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001773-MR
TO BE PUBLISHED 4/19/2013
BRACKEN

VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

A claim of negligence per se merely substitutes the common law standard of care with a statutory standard of care. Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (quoting Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). Whether John violated his common law standard of care or the statutorily-imposed standard of care found in KRS 524.130 is immaterial since “the violation ‘must be a substantial factor in causing the result.’” Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (quoting Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991)). The issue in the underlying case is whether substantial evidence supported the jury’s finding that John’s negligence was not a substantial factor in causing an injury to the Estate. Thus, the Estate’s argument that John’s actions violated KRS 542.130 is not germane to the issue.

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