As we have seen in the preceeding lesson, courts are never required to adopt a "criminal" (i.e., penal) statute as the standard of conduct of the R.P.P. in a "civil" negligence case. Nevertheless, a court may still choose to exercise its discretion and apply such a statutory standard IF the factual circumstances are otherwise appropriate. In most jurisdictions courts have adopted a de facto two-prong "test" for determining whether a "criminal" statute may be applied as a proper exercise of the court's "discretion" under such circumstances. This so-called "test" is generally stated as some variation of the following dual inquiry:

 

(1). Does the plaintiff belong to that particular class of persons whom the statute was intended (by the legislature) to protect?

AND

(2). Is the plaintiff's injury of the same type that the particular statute was intended (by the legislature) to prevent?

 

It is ONLY when the court can answer "YES" to BOTH of these questions that the particular "criminal" statute (or in some jurisdictions, a regulation) in question will then be adopted as the standard of care and applied to determine the conduct of the R.P.P. in a "civil" negligence case.

The purpose of this Exercise is to demonstrate precisely HOW this traditional two-prong "test" operates in determining whether the legislature intended a particular "criminal" statute to be applicable as a standard of conduct for the R.P.P. in a "civil" negligence case, and to articulate at least some of the analytical processes that courts utilize in applying this "test" to actual "criminal" statutes.