Defining ‘negligence per se’

By |  August 3, 2016

Negligence per se is a legal concept employed in lawsuits to cement a claim for damages.

A motion for summary judgment will contend there is no question of negligence for a jury to decide. A defendant’s violation of a safety law caused the plaintiff’s injury, and that is negligence per se.

If parties to a suit are from different states, the case may be removed to a federal district court, which must then apply the law of the state. In Kentucky, the common law principle of negligence per se is codified in a 1942 statute: “A person injured by the violation of any statute may recover from offender such damages as he sustained by reason of the violation.”

Kentucky case law establishes conditions that must be satisfied: the statute must have been intended to prevent the type of occurrence that took place and the violation must have been a substantial factor in causing the result.

Case and rulings

Evansville Garage Door Co. was contracted for an installation in a building under construction at a Kentucky mine facility operated by Covol Fuels. During door tension adjustment, David McCarty, one of the two Evansville employees, was knocked off a ladder and suffered fatal injuries.

The Mine Safety & Health Administration (MSHA), having comprehensive jurisdiction on mine properties, investigated and found manufacturer installation instructions were not followed. Specifically, there was a failure to block the door against unintended motion. MSHA cited Evansville, writing the following: “The contractor employed by the operator had not securely blocked the overhead rolling steel door being installed in a newly constructed surface structure on the site of Minuteman Plant for Covol Fuels … Contractor [Evansville] employees were installing a 20-[ft.] x 14-[ft.] door weighing 1,803 pounds when the door began to descend. It contacted the ladder from which one of the employees fell, causing fatal injuries.”

The decedent’s estate claimed the mine operator was responsible for the contractor’s violations of mine safety laws and was negligent per se. (The estate had already received workers compensation from the employer, Evansville.)

A motion for summary judgment asserted Covol was in violation of Kentucky mining laws. The only issue was monetary damages. The federal district court denied the motion.

The case was appealed to the U.S. Court of Appeals for the Sixth Circuit, which referred the state law question to the Kentucky Supreme Court. That court advised there was no violation of Kentucky’s mining laws or regulations.

Kentucky mine law jurisdiction at mines is narrower than MSHA’s. The Kentucky court described the plaintiff’s problem: “Central to the [estate’s] argument is the assertion that McCarty’s fatal injury occurred at a ‘mine’ because the garage door installation was being performed at a building situated on a coal mine site. However … the only ‘buildings’ that fall within the definition of a ‘mine’ are those being ‘used in connection with the workings [of the mine].’ … The structure upon which McCarty was working was an ‘unfinished building’ … under construction and was not being ‘used in connection with the workings’ of Covol’s mining operations.”

With this, the Sixth Circuit affirmed: “… The administrative regulations cited by the Estate apply to mining operations, mine workers and the traditional dangers and risks ordinarily associated with coal mining. We find nothing in the text of these administrative regulations which would indicate that McCarty was within the class of persons to be protected, or that his injuries were within the type of harms to be prevented by the regulations.”

Because Kentucky law differs from federal law, the result probably would not be different even if MSHA cited Covol. But MSHA clearly viewed Evansville as an independent operator.

That’s one reason it is good for mine operators to insist their contractors obtain MSHA IDs. A contractor ID may avoid citations to the mine operator. It may also work to head off misdirected lawsuits, notwithstanding there was no such effect in this Kentucky case. In other states, the mine laws might be more like MSHA’s and might apply even if a contractor is not doing mining work.

Michael T. Heenan is with the national labor, employment and safety law firm Ogletree Deakins. His book MSHA Compliance Essentials is available in English and Spanish (2016). You can reach him at

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