THE OKLAHOMA BAR JOURNAL 42 | AUGUST 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Objective Versus Subjective Standards in Negligence Per Se By William “Alex” Orr Negligence per se is, of course, a term used when a duty of care is based on a violation of specifically prescribed conduct required by a statute.1 When courts adopt the statutory standard for a cause of action for negligence, the violation of the statute constitutes negligence per se if the other elements of negligence are present.2 In order to establish negligence per se on the basis of statutory violation, a party must show that the injury was caused by the statute’s violation, the injury was of the type intended to be prevented by the statute, and the injured party was a member of the class meant to be protected by the statute.3 These are the elements of negligence per se in Oklahoma and mirror the elements found in the Restatement on Torts.4 While the violation of a statutory duty imposed for the protection of person or property constitutes negligence per se generally, the standard of duty within the statute must be fixed and defined by law, and be the same in all circumstances.5 In other words, where a negligence per se instruction does not impose positive, objective standards, it is inappropriate because determination of whether conduct measures up to the standards of conduct enjoined by the statute depends on the conditions and circumstances proved and requires evaluation of the evidence.6 The issue becomes then one of general, common law negligence, not of negligence per se.7 In essence, where violating the specific language of the statute depends on the conditions and NEGLIGENCE PER SE IS OFTEN INTRODUCED TO LAW STUDENTS as a seemingly straightforward doctrine: when a defendant violates a statute, liability for negligence may follow. Yet this simplified understanding obscures a critical limitation embedded within the doctrine – namely, not all statutory violations are created equal. While negligence per se allows courts to adopt legislatively prescribed standards of conduct, its application depends on whether the statute imposes a fixed, objective duty, rather than a flexible, circumstance-dependent standard. This distinction, though frequently overlooked in both academic instruction and early practice, has become increasingly significant in Oklahoma jurisprudence. As recent decisions illustrate, statutes incorporating subjective terms such as “reasonable,” “prudent,” or “safe” fail to establish the kind of definitive rule necessary to support negligence per se, instead relegating the claim to traditional negligence analysis. Legal Potpourri How To Craft Viable Negligence Per Se Claims and How To Challenge Improper Claims
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