Oklahoma Supreme Court finds federal laws and regulations establish the standard of care in negligence per se claims; violation of federal law or regulation thus satisfies the “duty” and “breach” elements of negligence per se. Furthermore, federal preemption defenses are no longer effective in Oklahoma in the negligence per se context.
On March 19, 2013, the Oklahoma Supreme Court released Howard v. Zimmer, Inc., 2013 OK 17. This new decision both makes it easier for plaintiffs to establish the existence of a legal “duty” and standard of care in a negligence case, and, it eliminates a commonly used defense against negligence claims.
The Howard opinion reminds us that to prevail on a claim for negligence per se, a plaintiff must not only demonstrate violation of a federal law, “but also that the violation caused his injury along with the extent to which the injury may support an award of damages.” Coupled with the overruling of a line of preemption cases from the Oklahoma Court of Civil Appeals dating back to 1994, however, the practical effect of Howard is to do away with one of the most effective defenses to negligence per se claims.
Howard diminishes the relevancy of longstanding “implied right of action” caselaw because a negligence per se claim often can substitute for a private cause of action.
Going forward under Howard, we expect that motions for partial summary judgment by plaintiffs will become more common and more commonly granted. Resourceful plaintiffs’ lawyers will scour the Federal Register and the U.S. Code for provisions that can substitute for a common law standard of care in contexts not yet seen in Oklahoma’s courts. Defense motion for summary judgment will become less effective with the effective demise of the federal preemption defense.
Our lawyers have been briefed on the Howard case and the changes it will cause to Oklahoma litigation. You are welcome to call any one of our lawyers for a more detailed discussion of the case, or to review how these changes to the law could impact your business.