CACI No. 418. Presumption of Negligence per se

Judicial Council of California Civil Jury Instructions (2020 edition)

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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
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
• 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
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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
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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].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002-1028
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)
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
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)
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16 California Points and Authorities, Ch. 165, Negligence, §§ 165.70, 165.80,
165.81 (Matthew Bender)
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