Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Notes
1. Torts in the modern state. State courts (and federal courts applying state tort law) have
addressed implied cause of action claims in a variety of contexts. In Sheehy v. Big Flats
Community Day, Inc., 73 N.Y.2d 629 (1989), the New York Court of Appeals held that a state law
prohibiting the furnishing of alcoholic beverages to anyone under the legal age did not create a
private cause of action for a minor plaintiff who was injured while intoxicated because the law
was intended to authorize suits by those injured by intoxicated minors. In Lu v. Hawaiian
Gardens Casino, 50 Cal. 4th 592 (2010), the Supreme Court of California held that employees
could not sue to enforce a provision of the state’s labor code, which prohibited employers from
taking gratuities left for employees.
Note that private right of action analyses ask whether the statute in question imposes a
duty on the defendant owed to and enforceable by the plaintiff in a private suit for damages, rather
than whether the statutory standard sets the measure of negligence for purposes of a common law
negligence claim. But sometimes, as in Uhr, plaintiffs advance both types of claims—they are,
after all, functionally very similar—and the analysis can become muddy. For an example of a
case that elucidates better than Uhr the distinction between a statute-based private cause of action
and a common law negligence claim that relies on a statutorily created standard, consider
Marquay v. Eno, 662 A.2d 272 (N.H. 1995), involving three plaintiffs who alleged that, as middle
and high school students, school district employees subjected them to sexual and other abuse;
claims of negligence against some of the defendants turned on their failure to report suspected
child abuse, as required by New Hampshire state law. Taking up the relationship of a statutory
violation to civil liability, the court explained:
. . . whether or not the common law recognizes a cause of action, the plaintiff may
maintain an action under an applicable statute where the legislature intended
violation of that statute to give rise to civil liability. The doctrine of negligence per
se, on the other hand, provides that where a cause of action does exist at common
law, the standard of conduct to which a defendant will be held may be defined as
that required by statute, rather than as the usual reasonable person standard. The
doctrine of negligence per se, however, plays no role in the creation of common law
causes of action. Thus, in many cases, the common law may fail to recognize
liability for failure to perform affirmative duties that are imposed by statute.
Id. at 713-14. In other words, the court recognized a scenario in which a common law negligence
claim might fail, because the common law does not recognize the kind of duty that the statute
imposes, but a statutory violation might nonetheless translate into civil liability, producing
functionally the same result (monetary damages); see also Cuyler v. United States, 362 F.3d 949
(7th Cir. 2004) (discussing whether violation of an Illinois child abuse reporting statute constitutes
negligence per se and, in doing so, distinguishing between a common law cause of action and a
statutory one).
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