If a legislative provision protects a certain class of persons by prohibiting or by requiring certain conduct, a person may commit a tort for violating that legislative provision, even if the legislative provision does not include a remedy for the violation. An injured member of that class of persons may be entitled to a tort action against the violator.
The terms “legislative provision” include statutes, ordinances, or administrative regulations. The terms also include constitutional provisions.
Some legislative provisions include an express remedy for violations of the provisions. Such types of provisions include civil rights acts, dramshop laws or laws regulating the sale and use of intoxicating liquors, and dog bite statutes. Other legislative provisions do not contain an express remedy for violations of the provisions. Examples of such provisions include criminal statutes that contain criminal sanctions and penalties but do not contain civil remedies.
If a legislative provision does not contain a civil remedy for violation of the provision, courts can take the approach that because the provision protects a certain class of persons, the legislature intended to provide a civil remedy in order to protect the class from violations. Courts may take the alternative approach that the legislature’s failure to provide a civil remedy was intentional and that there is no civil cause of action for a violation of the provision.
Negligence Per Se and Public Nuisance
However, even if a legislative provision does not contain a civil remedy for violation of the provision and even if a court determines that the legislature’s failure to provide a civil remedy was intentional, the court may recognize a cause of action for violation of the provision based on the tort principles of negligence per se or public nuisance. Negligence per se means that a person violates the reasonable standard of care when he or she violates a statute, an ordinance, or a legislative provision. Such violation of the reasonable standard of care is an act of negligence as a matter of law. A public nuisance is an unreasonable interference with the rights of the general public. An unreasonable interference with the rights of the general public is deemed to constitute a violation of legislative provisions that protect the rights of the general public.
If a court determines that there is a cause of action for a violation of a legislative provision, the cause of action is usually a tort action. A tort action is an action in which the relief that is granted to a plaintiff is civil or monetary damages or injunctive relief.
Examples of situations where a court may allow a cause of action for violation of a legislative provision include a trespass action against a law enforcement officer who conducts an illegal search of a person’s home, a battery action against a person who engages in sexual intercourse with a consenting minor, or an action for a violation of the right to privacy when a person has divulged to the public a rape victim’s name. Criminal defense lawyer Boca can be your best friend if you are a victim of these crime.
In determining whether to provide a cause of action in tort for a violation of a legislative provision, courts generally look to whether the tort action is appropriate or is consistent with the intent of the legislative provision. Factors that the courts use in making this determination include the nature of the legislative provision, the adequacy of any existing remedies, the extent to which the tort action will aid or interfere with other remedies, and the purpose that the legislative provision is attempting to achieve.
In order to recover damages for a violation of a legislative provision, a plaintiff must show that he or she was within the class of persons whom the provision was intended to protect. The plaintiff must also show that he or she was harmed by the violation, which harm was contemplated by the provision.
Damages that may be awarded to a plaintiff for violation of a legislative provision include nominal damages, compensatory damages, or punitive damages. The plaintiff may also be entitled to an injunction or a declaratory judgment. A declaratory judgment is a judgment that states whether or not a defendant’s conduct constituted a violation of the provision.