AUGUST 2026 | 45 THE OKLAHOMA BAR JOURNAL 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. 47 O.S.Supp.1955 §121.3(a) to serve as the basis for a negligence per se claim.22 The provisions of that statue declared that a vehicle shall be operated “at a careful and prudent speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and any other conditions then existing, and no person shall drive at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”23 Per the court, the terms of this statute did not impose any positive objective standards, nor did they prescribe any greater or lesser degree of care than that required of a driver under the prevailing rules at common law.24 Before a driver may be found to have violated this statute, the jury would necessarily have to conclude that the driver’s actions amount to common law negligence, which thus made any negligence per se instruction redundant.25 The court deemed it was fundamental error to provide the jury a negligence per se instruction under these circumstances.26 Unlike the objective statutes discussed above, such as the safety chain requirement in Murry and the categorical prohibition against pollution in Lazy S Ranch, §121.3(a) did not establish a fixed, measurable rule of conduct. From a practical standpoint, words and phrases such as “reasonable,” “prudent,” “safe,” “proper,” “appropriate,” “disregard,” or “due regard” are strong indicators that the statute does not impose a bright-line rule.27 Likewise, statutes that explicitly require consideration of surrounding conditions, traffic, weather, visibility, or other circumstances, signal that compliance can generally not be determined without contextual judgment.28 These features should be highlighted to demonstrate that the statute lacks the fixed standard required for negligence per se. Procedurally, this argument can, and should, be raised early and often. At the pleading stage, counsel can argue that the cited statute fails as a matter of law to support negligence per se because it lacks an objective standard. At summary judgment, the same argument can be reframed to show that, even taking the facts in the light most favorable to the plaintiff, the alleged violation depends on a subjective evaluation reserved for ordinary negligence. In either posture, the goal is to force the claim out of the negligence per se framework and back into the traditional, fact- intensive negligence analysis. PRACTITIONER’S TAKEAWAY In the end, the story of negligence per se is not one of automatic liability simply because a statute is cited, but of careful line-drawing between rules and standards. As discussed at the outset, what begins as a seemingly straightforward doctrine quickly reveals itself to be far more nuanced in practice. The cases and principles explored above demonstrate that the true dividing line is whether the statute at issue supplies a fixed, objective command or merely echoes the flexible, circumstance-driven inquiry of ordinary negligence. When a statute operates as a brightline rule, it can transform a negligence claim into a clear question of compliance. But when the statute depends on terms like “reasonable,” “prudent,” or “proper,” it collapses back into the same fact-intensive analysis that governs common law negligence. The practitioner’s task is not simply to identify a statutory violation, but to critically evaluate the nature of the duty imposed. Crafting viable claims and dismantling improper ones requires returning to that foundational principle: Negligence per se applies only where the law itself has already defined the standard of conduct in objective, unmistakable terms. Anything less is not negligence per se at all, but negligence in its traditional form. In that way, the doctrine comes full circle, reinforcing the lesson introduced at the beginning: The law does not reward rote invocation of statutes, but careful, disciplined analysis of what those statutes actually require. ABOUT THE AUTHOR William “Alex” Orr is an attorney with Coffey, Senger, Hancock & Harmon PLLC in Tulsa. His practice centers on appellate advocacy, complex motion practice, and legal research in state and federal courts. Mr. Orr focuses on developing persuasive written advocacy, including dispositive motions, appellate briefs, and other high-stakes litigation filings, with an emphasis on thorough legal analysis and strategic argument development. ENDNOTES 1. Smith v. Barker, 2017 OK CIV APP 69, ¶27, 419 P.3d 327. 2. Mansfield v. Circle K .Corp., 1994 OK 80, ¶6, 877 P.2d 1130. 3. See, e.g., Hamilton v. Allen, 1993 OK 46, ¶9, 852 P.2d 697; see also Ohio Cas. Inc. Co. v. Todd, 1991 OK 54, ¶8, 813 P.2d 508. 4. Id; Restatement (3d) on Torts: Liability for Physical Harm (adopted 2005; published 2010), §14: Statutory Violations as Negligence Per Se. 5. Smith, 2017 OK CIV APP at ¶29; Chicago, R.I. & P. Ry. Co. v. Pitchford, 1914 OK 79, 143 P. 1146 (court syllabus). 6. Smith, 2017 OK CIV APP at ¶29.
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