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The doctrine of negligence per se, in its simplest formulation, enables courts to hold a defendant negligent as a matter of law when that defendant’s violation of a statute or regulation results in injury to another. Although courts widely accept negligence per se, many do not apply the doctrine when a defendant is alleged to have violated regulations implemented by federal agencies, such as the Occupational Safety and Health Administration (OSHA). In fact, several courts take the position that treating a party’s violation of OSHA standards as negligence per se is not only a misapplication of the doctrine, but incompatible with the Occupational Safety and Health Act (OSH Act), the federal legislation which established OSHA. This Note explores the rise of negligence per se as an established doctrine of American tort law, considers the nature of OSHA standards and their relationship with state law, and provides a comprehensive survey of federal and state courts’ treatment of OSHA violations in negligence cases. Further, this Note argues that, given the discretionary nature of negligence per se, treating OSHA violations as negligence per se is wholly legitimate and altogether compatible with the OSH Act, contrary to the view of many courts.


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7 Sep 2022
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  • Subject
    • Labor and Employment Law

    • State and Local Government Law

    • Torts

  • Journal title
    • Boston College Law Review

  • Volume
    • 61

  • Issue
    • 8

  • Pagination
    • 3043

  • Date submitted

    7 September 2022