A Second Look at Negligence Per Se: What It Means and How It Affects Your Case

Negligence per se is a legal doctrine that can significantly impact a personal injury case. It creates a presumption of negligence when someone violates a statute, regulation, or ordinance designed to protect the public. Understanding how this doctrine works can be crucial for both plaintiffs and defendants navigating negligence claims.

What is Negligence Per Se?

Negligence per se arises when a person's violation of a law or regulation is presumed to be negligent if certain conditions are met. Under Evidence Code section 669, negligence is presumed when the following elements are established:

1. The defendant violated a statute, ordinance, or regulation.

2. The violation proximately caused injury or damage.

3. The injury resulted from an occurrence that the statute was designed to prevent.

4. The injured party is a member of the class that the statute was intended to protect.

This framework was clarified in Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596 [247 Cal.Rptr.3d 538], where the court emphasized that the burden is on the proponent of the negligence per se doctrine to demonstrate these elements.

 
How Negligence Per Se is Applied

If a plaintiff establishes that a defendant violated a statute and that the violation was a substantial factor in causing harm, the jury must find the defendant negligent—unless the defendant can prove that the violation was excused. This was confirmed in Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 500-501 [225 P.2d 497], which highlighted that negligence can still be proven by other means even if negligence per se is not established.

Importantly, negligence per se is not an independent cause of action. Instead, it serves as an evidentiary presumption affecting the standard of care in a negligence lawsuit (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [238 Cal.Rptr.3d 528]). In essence, the plaintiff "borrows" a statute to establish both the duty and the standard of care (David v. Hernandez (2014) 226 Cal.App.4th 578, 584 [172 Cal.Rptr.3d 204]).

 
Excuses for Statutory Violations

Not every violation of a law results in negligence per se. The doctrine allows for certain exceptions where a violation may be excused. For example, if compliance with the law was impossible or if violating the statute was safer under the specific circumstances, the presumption of negligence may be rebutted. Courts have highlighted this in various rulings, noting that the burden of proof shifts to the defendant to establish that the violation did not cause the plaintiff's injury (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [199 Cal.Rptr.3d 522]).

Moreover, Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263 [155 Cal.Rptr.3d 306] clarified that the presumption of negligence can only be rebutted by evidence showing a valid excuse or justification for the violation.

 
Determining the Standard of Care

The trial court plays a key role in determining whether a statute sets the standard of care. The first two elements of negligence per se—violation and causation—are factual determinations for the jury. However, whether a statute is intended to protect against the type of harm suffered, and whether the injured party is part of the protected class, are legal questions for the court (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529]).

In Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97, 863 P.2d 167], "When Jorge Ramirez (plaintiff) was four months old, he was given a non-prescription drug, St. Joseph Aspirin for Children (SJAC), for relief from cold-like symptoms. After receiving three SJAC tablets over a two-day period, Ramirez’s mother took Ramirez to a hospital, where a doctor prescribed non-aspirin-containing drugs. Ramirez’s mother ignored the advice and continued to provide Ramirez with SJAC. Ramirez subsequently developed Reye’s syndrome and suffered severe neurological damage as a result. At the time, the U.S. Food and Drug Administration (FDA) was aware of the relationship between the ingestion of aspirin during a viral illness and Reye’s syndrome, and required a warning label concerning Reye’s syndrome to be displayed on SJAC packaging. Ramirez’s mother sued Plough, Inc. (Plough) (defendant), the manufacturer of SJAC, on Ramirez’s behalf. Although Plough had provided a warning about Reye’s syndrome on the SJAC purchased by Ramirez’s mother, the warning was in English and Ramirez’s mother was only literate in Spanish. The trial court determined that Plough had no duty to provide the warning in a foreign language, and granted Plough’s motion for summary judgment. Ramirez appealed. The court of appeal overturned the decision, holding that the adequacy of the warning provided by Plough was a triable issue of fact. Plough appealed the decision." (see here)

The Ramirez court elaborated that legislative standards become the civil standard of care only because courts accept them. Without such standards, the jury is left to determine what constitutes reasonable conduct under the circumstances. 

Negligence Per Se and Federal Standards

California courts recognize that federal statutes or regulations can establish the standard of care in negligence per se claims (DiRosa v. Showa Denko K. K. (1996) 44 Cal.App.4th 799, 808 [52 Cal.Rptr.2d 128]). However, administrative agencies cannot independently impose a duty of care unless authorized by the legislature (Cal. Serv. Station Etc. Ass'n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1175 [73 Cal.Rptr.2d 182]).

 
When Does Negligence Per Se Apply?

Negligence per se is most commonly applied in cases involving violations of safety regulations, traffic laws, or building codes. However, the courts have limited its application in some contexts. For instance, while negligence per se can apply to building code violations, courts have noted that its application has been limited to specific situations (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1212 [252 Cal.Rptr.3d 596]).

Similarly, Cal-OSHA regulations can establish standards for duty and care in negligence cases (Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d 915]). However, their application depends on the specifics of each case.

 
Why Understanding Negligence Per Se Matters

Negligence per se can simplify a plaintiff's case by establishing a presumption of negligence based on statutory violations. However, defendants have the opportunity to rebut this presumption by showing that their actions were justified or that the violation was not the actual cause of the harm.

Understanding this doctrine is essential for both sides of a legal dispute. For plaintiffs, it provides a framework to establish negligence more efficiently. For defendants, it highlights the importance of demonstrating valid reasons for any statutory violations.

If you believe negligence per se applies to your case, consult us today to evaluate your options and develop a strong legal strategy. Knowing how and when this doctrine applies can make a significant difference in the outcome of a case.