Although their specific terminologies may vary somewhat from one jurisdiction to another, the majority of American courts basically approach this question in a remarkably consistent manner. A "civil" statute may be defined for purposes of this Exercise as one that directly pertains to the imposition of civil (i.e.,, Tort) liability. Where a "civil" statute prescribes a certain standard of conduct in a given situation, the court has very little discretion in determining whether or not to apply the statutory standard. By enacting a specific statute that seeks to impose civil liability for certain prescribed conduct, the legislature has essentially removed the court's usual discretion in such matters. Instead, the court simply MUST ascribe the prescribed statutory standard to the conduct of the R.P.P.

In contrast to "civil" statutes, "criminal" statutes are enacted for some purpose other than the mere prescription of specific legal rights and responsibilities of persons as they relate to the assessment and determination of individual "civil" Tort liability. These statutes are frequently referred to as "criminal" or "penal" statutes, since they usually impose some type of criminal (or other punitive) consequences against those individuals who violate such statutes. As contrasted with "civil" statutes which affix civil Tort responsibilities between various individual parties in society, these statutes are enacted for the protection of society at large, hence their imposition of criminal (or quasi-criminal) penalties such as imprisonment, fines, or the loss of some public privilege (e.g., driving, etc.) against persons found liable for violating these statutes. Occassionally, certain types of "criminal" statutes may also be referred to by the courts as "safety" statutes. Again, however, the typical sanctions imposed for violations of "safety" statutes are essentially criminal (or at least quasi-criminal) in nature. Therefore, throughout this entire series of Exercises, the "criminal-civil" distinction will be used to distinguish between that category of statutes which is expressly intended by the legislature to regulate some aspect of the tort relationship between individual parties (i.e., a "civil" statute) and those statutes which attempt to regulate general standards of conduct among the general public through the imposition of criminal or quasi-criminal sanctions (i.e., "criminal" statutes).

The importance of this distinction involves far more significance than mere semantics. As we have already seen, "civil" statutes must be accepted by the courts in defining the conduct of the R.P.P. in negligence cases. However, where a "criminal" statute is asserted as the basis for describing the conduct of the R.P.P., the court is not at all required to adopt such a statutory standard in a negligence (or other civil) action. In these situations courts are allowed to retain their traditional discretion in defining the applicable legal duty that is owed in a given situation. Thus, individual determinations as to whether or not any particular "criminal" statute will be utilized in defining the R.P.P.'s standard of conduct in a negligence case are left to the discretion of each court on a case by case basis.

The Kansas Supreme Court in Greenlee v. Clay County Bd. of Commissioners, 740 P.2d 609 (Kan. 1987), explained this distinction in the following manner:

"Generally, the test of whether one injured by the violation of a statute may recover damages from the wrongdoer is whether the legislature intended to give such a right. While, in some cases, statutes expressly impose personal liability on persons or entities for violation of the provisions thereof, or for failure to perform specified duties, [i.e., "civil" statutes] the absence of such express provisions does not necessarily negate a legislative intent that the statute shall affect private rights. The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. The generally recognized rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity is not subject to construction establishing civil liability." 740 P. 2d at 609-10.

Thus, if a statute can be classified as one which imposes "civil" liability on those who violate it, the court MUST adopt it as the appropriate standard of care for the R.P.P. in a negligence case. However, if a statute merely imposes some "criminal" (or penal) sanction upon those who violate it, the court remains free to exercise its own discretion in determining whether or not to apply the statutory prescription as the standard to be followed by the R.P.P. in each individual negligence case.