CACI 418 Presumption of Negligence per se

New September 2003; Revised December 2005, June 2011, November 2020

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This jury instruction addresses the establishment of the two factual elements underlying the presumption of negligence. If they are not established, then a finding of negligence cannot be based on the alleged statutory violation. However, negligence can still be proven by other means. (See Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 500–501 [225 P.2d 497].)

If a rebuttal is offered on the ground that the violation was excused, then the bracketed portion in the second and last paragraphs should be read. For an instruction on excuse, see CACI No. 420, Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused.

If the statute is lengthy, the judge may want to read it at the end of this instruction instead of at the beginning. The instruction would then need to be revised, to tell the jury that they will be hearing the statute at the end.

Rebuttal of the presumption of negligence is addressed in the instructions that follow (see CACI Nos. 420 and 421).

•Negligence per se. Evidence Code section 669.

•“Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. This is called negligence per se.” (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529]; see also Cal. Law Revision Com. com. to Evid. Code, § 669.)

•“ ‘The negligence per se doctrine is codified in Evidence Code section 669, subdivision (a), under which negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.’ ‘The burden is on the proponent of a negligence per se instruction to demonstrate that these elements are met.’ ” (Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596 [247 Cal.Rptr.3d 538], internal citations omitted.)

•“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. That is, the trial court decides whether a statute or regulation defines the standard of care in a particular case.” (Jacobs Farm/Del Cabo, Inc., supra, 190 Cal.App.4th at p. 1526, internal citations omitted; see also Cal. Law Revision Com. com. to Evid. Code, § 669.)

•“[T]he 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].)

•“Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove duty of care and standard of care. [Citation.] The plaintiff still has the burden of proving causation.” (David v. Hernandez (2014) 226 Cal.App.4th 578, 584 [172 Cal.Rptr.3d 204].)

•“Where a statute establishes a party’s duty, ‘ “proof of the [party’s] violation of a statutory standard of conduct raises a presumption of negligence that may be rebutted only by evidence establishing a justification or excuse for the statutory violation.” ’ This rule, generally known as the doctrine of negligence per se, means that where the court has adopted the conduct prescribed by statute as the standard of care for a reasonable person, a violation of the statute is presumed to be negligence.” (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263 [155 Cal.Rptr.3d 306], internal citation omitted.)

•“[I]n 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 to prove the violation of the statute did not cause the plaintiff’s injury.” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [199 Cal.Rptr.3d 522].)

•“ ‘The significance of a statute in a civil suit for negligence lies in its formulation of a standard of conduct that the court adopts in the determination of such liability. The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it. In the absence of such a standard the case goes to the jury, which must determine whether the defendant has acted as a reasonably prudent man would act in similar circumstances. The jury then has the burden of deciding not only what the facts are but what the unformulated standard is of reasonable conduct. When a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm, the court accepts the formulated standards and applies them [citations], except where they would serve to impose liability without fault.’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97, 863 P.2d 167].), internal citations omitted.)

•“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].)

•“[T]he courts and the Legislature may create a negligence duty of care, but an administrative agency cannot independently impose a duty of care if that authority has not been properly delegated to the agency 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].)

•“In combination, the [1999] language and the deletion [to Lab. Code, § 6304.5] indicate that henceforth, Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d 915].)

•“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].)