CACI 420 Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused

California Civil Jury Instructions CACI

420 Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused

A violation of a law is excused if [name of plaintiff/name of defendant] proves that one of the following is true:

(a)The violation was reasonable because of [name of plaintiff/defendant]’s [specify type of “incapacity”]; [or]

(b)Despite using reasonable care, [name of plaintiff/name of defendant] was not able to obey the law; [or]

(c)[Name of plaintiff/name of defendant] faced an emergency that was not caused by [his/her/nonbinary pronoun] own misconduct; [or]

(d)Obeying the law would have involved a greater risk of harm to [name of plaintiff/defendant] or to others; [or]

(e)[Other reason excusing or justifying noncompliance.]

Directions for Use

The burden of proof shifts from the party asserting a negligence per se claim to the party claiming an excuse for violating a law. (Baker-Smith v. Skolnick (2019) 37 Cal.App.5th 340, 347 [249 Cal.Rptr.3d 514].) Factor (b), regarding an attempt to comply with the applicable statute or regulation, should not be given if the evidence does not show such an attempt. (Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 423 [94 Cal.Rptr. 49].) Factor (b) should be used only in special cases because it relies on the concept of due care to avoid a charge of negligence per se. (Casey v. Russell (1982) 138 Cal.App.3d 379, 385 [188 Cal.Rptr. 18].)

Sources and Authority

Rebuttal of Presumption of Negligence per se. Evidence Code section 669(b)(1).

“In our opinion the correct test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (Alarid v. Vanier (1958) 50 Cal.2d 617, 624 [327 P.2d 897].)

“[T]he presumption of negligence codified in Evidence Code section 669, subdivision (a), may be rebutted by proof that ‘[t]he person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.’ ” (Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 597 [247 Cal.Rptr.3d 538].)

“An excuse instruction is improper unless special circumstances exist.” (Baker-Smith, supra, 37 Cal.App.5th at p. 345.)

“The Restatement Second of Torts illustrates the types of situations which may justify or excuse a violation of the statute: [¶] ‘(a) [T]he violation is reasonable because of the actor’s incapacity [e.g., a small child runs into the street without looking, in violation of statute requiring pedestrians to look both ways before crossing]; [¶] ‘(b) [H]e neither knows nor should know of the occasion for compliance; [¶] ‘(c) [H]e is unable after reasonable diligence or care to comply [e.g., a statute provides that railroads must keep fences clear of snow. A heavy blizzard covers the fences with snow and, acting promptly and reasonably, the railroad company is unable to remove all the snow for 3 days. Someone crosses the fence on the snow mound and is injured. The violation of the statute is excused]; [¶] ‘(d) [H]e is confronted by an emergency not due to his own misconduct [e.g., swerving into left lane to avoid child suddenly darting into the road]; [¶] ‘(e) [C]ompliance would involve a greater risk of harm to the actor or to others.’ Thus, in emergencies or because of some unusual circumstances, it may be difficult or impossible to comply with the statute, and the violation may be excused.” (Casey, supra, 138 Cal.App.3d at p. 384, internal citations omitted.)

“To determine whether excuse could be a defense in a negligence per se case, California law weighs the benefits and burdens of accident precautions.” (Baker-Smith, supra, 37 Cal.App.5th at p. 345.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.13 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.81 (Matthew Bender)