CACI 421 Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor Excused)

California Civil Jury Instructions CACI

421 Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor Excused)

[Name of plaintiff/defendant] claims that even if [he/she/nonbinary pronoun] violated the law, [he/she/nonbinary pronoun] is not negligent because [he/she/nonbinary pronoun] was  years old at the time of the incident. If you find that [name of plaintiff/defendant] was as careful as a reasonably careful child of the same age, intelligence, knowledge, and experience would have been in the same situation, then [name of plaintiff/defendant] was not negligent.

Directions for Use

This instruction does not apply if the minor is engaging in an adult activity. (Evid. Code, § 669(b)(2).)

Sources and Authority

Rebuttal of Presumption of Negligence per se: Minor. Evidence Code section 669(b)(2).

“The per se negligence instruction is predicated on the theory that the Legislature has adopted a statutory standard of conduct that no reasonable man would violate, and that all reasonable adults would or should know such standard. But this concept does not apply to children.” (Daun v. Truax (1961) 56 Cal.2d 647, 654 [16 Cal.Rptr. 351, 365 P.2d 407].)

An exception to this reduced standard of care may be found if the minor was engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co. (1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v. Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d Torts, § 283A, com. c.)

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)