Analyzing Negligence Per Se in California
Introduction
In California personal injury cases, plaintiffs commonly invoke the concept of negligence per se to establish liability. This doctrine, codified in Evidence Code § 669, provides that violating a statute, regulation, or ordinance intended to protect against the type of harm suffered can create a presumption of negligence. Once established, this presumption can significantly bolster a plaintiff’s case. However, it is not automatically conclusive—defendants may rebut the presumption by showing they had a valid excuse or that their violation did not substantially cause the injury in question.
California’s Civil Jury Instructions (“CACI”) provide guidance on how courts instruct juries regarding negligence per se. CACI No. 418 outlines what a plaintiff (or defendant, in certain contexts) must prove to establish this presumption, while additional instructions, such as CACI Nos. 420 and 421, address rebuttal scenarios.
In this blog post, we will break down CACI No. 418 in detail, tracing its statutory basis, providing examples of how courts interpret it, and offering practical insights for plaintiffs and defendants alike. Our goal is to clarify the role of negligence per se, highlight key legal authorities, and showcase how these principles are applied in California courts.
What Is Negligence Per Se?
Negligence per se is not a standalone cause of action; rather, it is a legal doctrine that a plaintiff may use within a standard negligence claim. At its core, negligence per se means:
If a defendant violates a statute, ordinance, or regulation intended to protect against the type of harm that occurred—and that violation was a substantial factor in causing the harm—the defendant is presumed negligent.
This principle is grounded in the idea that the legislature (and sometimes regulatory bodies) has already set a standard of care for certain activities. Therefore, if someone violates that standard, it is fair to presume they acted unreasonably.
Legal Basis: Evidence Code § 669
Evidence Code § 669(a) states that negligence is presumed if:
The defendant violated a statute, ordinance, or regulation;
The violation proximately caused death or injury to a person or property;
The harm resulted from an occurrence the statute, ordinance, or regulation was designed to prevent; and
The injured party was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
The “first two elements are normally questions for the trier of fact and the last two are determined by the trial court as a matter of law.”
(Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529])
(Cal. Law Revision Com. com. to Evid. Code, § 669)
CACI No. 418: Presumption of Negligence Per Se
CACI No. 418, titled “Presumption of Negligence Per Se (Violation of Statute, Ordinance, or Regulation)”, provides the standard jury instruction on how to determine whether the presumption of negligence applies. It states:
That the party in question (the defendant, in a typical scenario) violated a law, statute, regulation, or ordinance; and
That the violation was a substantial factor in bringing about the harm,
“then you must find that [the defendant] was negligent [unless you also find that the violation was excused].”
If, however, the jury finds that there was no violation, or that the violation did not substantially factor into the harm, or that the violation was excused, the presumption does not apply. The jury must still decide whether the defendant was negligent under other legal standards.
Key Takeaways from CACI No. 418
This instruction focuses on the factual components of the presumption of negligence.
Even if the presumption is defeated, plaintiffs can still try to prove negligence by other means.(See Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 500-501 [225 P.2d 497])
If the defendant offers a rebuttal on the ground that the violation was excused, then the bracketed sections in the instruction should be read to the jury.(See also CACI No. 420, “Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused”)
Rebuttal of the Presumption: Excuse and Other Defenses
Negligence per se sets up a presumption, meaning it shifts the burden to the defendant to produce evidence that either:
No violation occurred, or
The alleged violation did not substantially cause the plaintiff’s harm, or
There was a legally recognized excuse or justification for violating the statute.
A common ground for rebuttal is that compliance was impossible, or that a justified emergency necessitated the violation. CACI Nos. 420 and 421 detail scenarios and criteria under which the presumption may be successfully rebutted.
“In negligence per se actions, the plaintiff must produce evidence of a violation of a statute and a substantial probability that the plaintiff’s injury was caused by the violation of the statute before the burden of proof shifts to the defendant.”
(Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [199 Cal.Rptr.3d 522])
Statutes and Regulations as the Standard of Care
When a legislative or regulatory body sets standards aimed at protecting a specific class of persons from a particular type of harm, courts often adopt those standards in civil litigation to define the duty and standard of care.
Federal Regulations: “There is no doubt in this state that a federal statute or regulation may be adopted as a standard of care.”
(DiRosa v. Showa Denko K. K. (1996) 44 Cal.App.4th 799, 808 [52 Cal.Rptr.2d 128])
State Regulations: California courts frequently adopt state-level administrative regulations, such as Cal-OSHA provisions, to establish the standard of care in negligence cases.
(Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d 915])
Building Codes: “While courts have applied negligence per se to building code violations, it has only been applied in limited situations.”
(Jones v. Awad (2019) 39 Cal.App.5th 1200, 1212 [252 Cal.Rptr.3d 596])
Not a Separate Cause of Action
It is critical to note that negligence per se does not stand alone as an independent cause of action. Rather, it acts as a method of proving the elements of duty and breach in an ordinary negligence claim.
“The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.”
(Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [238 Cal.Rptr.3d 528])
The plaintiff still bears the burden of establishing causation—namely, that the statutory violation actually led to the harm they suffered.
Practical Implications for Litigants
For Plaintiffs:
Identify the Right Statute or Regulation: Ensure the law allegedly violated was intended to protect against the specific kind of harm that occurred.
Establish Proximate Cause: Be prepared to present solid evidence showing the statutory breach was a substantial factor in causing the injury.
Anticipate Rebuttals: Defendants may argue compliance was impossible or that they had a valid excuse.
For Defendants:
Refute Violation: Present evidence that no violation of the law occurred in the first place.
Challenge Causation: Even if there was a violation, show it was not a substantial factor in causing the harm.
Assert Excuses: Prove that the violation was legally excused (e.g., unexpected emergency, necessity, or impossibility).
Key Authorities and Secondary Sources
Statutory Authority:Evidence Code § 669
Case Law:
Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 500-501 [225 P.2d 497]
Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529]
Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596 [247 Cal.Rptr.3d 538]
Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [238 Cal.Rptr.3d 528]
David v. Hernandez (2014) 226 Cal.App.4th 578, 584 [172 Cal.Rptr.3d 204]
Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263 [155 Cal.Rptr.3d 306]
Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [199 Cal.Rptr.3d 522]
Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97, 863 P.2d 167]
DiRosa v. Showa Denko K. K. (1996) 44 Cal.App.4th 799, 808 [52 Cal.Rptr.2d 128]
Cal. Serv. Station Etc. Ass’n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1175 [73 Cal.Rptr.2d 182]
Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d 915]
Jones v. Awad (2019) 39 Cal.App.5th 1200, 1212 [252 Cal.Rptr.3d 596]
Secondary Sources:6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002-1028
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-H, “Negligence Predicated On Statutory Violation (‘Negligence Per Se’),” ¶ 2:1845 (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8G-C, “Procedural Considerations—Presumptions,” ¶ 8:3604 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28-1.31
Levy et al., California Torts, Ch. 3, “Proof of Negligence,” §§ 3.10, 3.13 (Matthew Bender)
4 California Trial Guide, Unit 90, “Closing Argument,” §§ 90.88, 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 7, “Proof,” § 7.04 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, “Negligence,” § 380.50 (Matthew Bender)
16 California Points and Authorities, Ch. 165, “Negligence,” §§ 165.70, 165.80, 165.81 (Matthew Bender)
Conclusion
Negligence per se can be a powerful tool in California personal injury litigation, as it simplifies the plaintiff’s path to establishing a breach of duty. Nevertheless, defendants retain multiple avenues to refute or excuse the alleged violation. Ultimately, the jury decides whether the defendant violated the relevant statute or regulation and whether that violation was a substantial factor in causing the harm.
Whether you are a plaintiff considering a negligence per se argument or a defendant facing such a claim, understanding the nuances of CACI No. 418 and the broader statutory and case law framework is essential. Skilled legal counsel can help navigate the complexities, gather the evidence necessary to meet or rebut the presumption, and present the strongest possible case in court.
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