South-Western Legal Studies in Business

Failure to Follow Regulatory Standard May Result in Negligence per Se

Idaho high court held that a landfill operator could be liable based on negligence per se for failure to place a fence around a landfill where two children were killed. State law requires a fence to try to prevent such accidents, so negligence per se existed.

Topic Torts
Key Words

Nuisance; Negligence per Se; Duty of Care

C A S E   S U M M A R Y

Shaun and Alex O'Guin were walking home from school. They left the back of the school, cut across a field, and entered the back of a landfill that was not fenced off. No landfill personnel were present. A portion of a wall in the landfill collapsed, killing the boys. The O'Guins sued the county that operated the landfill, contending that it was liable for negligence per se for not having the landfill properly fenced. The district court dismissed the claims. The O'Guins appealed.


Vacated and remanded. The county's failure to place fences around the landfill to prevent unauthorized access constituted negligence per se. State law required landfill owners to control access to landfills and to fence or block access when an attendant was not on duty. To establish negligence per se, the O'Guins need not prove willful and wanton violation of landfill regulations. The regulations replaced the common law duty of care with the duty created by the regulation. Such is the case when 1) the statute or regulation clearly defines the required standard of conduct, 2) the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused, 3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect, and 4) the violation must have been the proximate cause of death. The children were the class of persons the regulations were designed to protect. The issue to be determined at trial is if the collapse of the wall was the proximate cause of death.


O'Guin v. Bingham County,122 P.3d 308 (Sup. Ct., Id., 2005)

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