California Civil Jury Instructions (CACI)
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 harm,
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
- Evidence Code section 669 codifies the common law presumption of negligence per se and the grounds for rebutting the presumption. Subdivision (a) sets forth the conditions that cause the presumption to arise:
The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature 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.
- “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.)
- “Essentially, application of the doctrine of negligence per se means that the court has adopted the conduct prescribed by the statute as the standard of care for a reasonable person in the circumstances.” (Casey v. Russell (1982) 138 Cal.App.3d 379, 383 [188 Cal.Rptr. 18].)
- “ ‘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  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].)
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 871–896
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
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)
1 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)