California Civil Jury Instructions (CACI) (2017)

418. Presumption of Negligence per se

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418.Presumption of Negligence per se
[Insert citation to statute, regulation, or ordinance] states:
If you decide
1. That [name of plaintiff/defendant] violated this law and
2. That the violation was a substantial factor in bringing about the
then you must find that [name of plaintiff/defendant] was negligent
[unless you also find that the violation was excused].
If you find that [name of plaintiff/defendant] did not violate this law or
that the violation was not a substantial factor in bringing about the
harm [or if you find the violation was excused], then you must still
decide whether [name of plaintiff/defendant] was negligent in light of the
other instructions.
New September 2003; Revised December 2005, June 2011
Directions for Use
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).
Sources and Authority
• 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. The presumption of negligence arises if (1) the
defendant violated a statute; (2) the violation proximately caused the plaintiff’s
injury; (3) the injury resulted from the kind of occurrence the statute was
designed to prevent; and (4) the plaintiff was one of the class of persons the
statute was intended to protect. 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. v. Western
Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529],
internal citations omitted; see also Cal. Law Revision Com. to Evid. Code,
§ 669.)
• “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
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 871–896
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-H, Negligence
Predicated On Statutory Violation (“Negligence Per Se”), ¶ 2:1845 (The Rutter
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
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, §§ 3.10, 3.13 (Matthew
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.89 (Matthew
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)