California Civil Jury Instructions (CACI) (2017)

420. Negligence per se: Rebuttal of the Presumption of Negligence (Violation Excused)

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420.Negligence per se: Rebuttal of the Presumption of
Negligence (Violation Excused)
A violation of a law is excused if 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/defendant] was
not able to obey the law; [or]
(c) [Name of plaintiff/defendant] faced an emergency that was not
caused by [his/her] 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.]
New September 2003
Directions for Use
Subparagraph (b), regarding an attempt to comply with the applicable statute or
regulation, should not be given where the evidence does not show such an attempt.
(Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 423 [94 Cal.Rptr. 49].) Subparagraph
(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.
Sources and Authority
• Rebuttal of Presumption of Negligence per se. Evidence Code section 669(b)(1).
• The language of section 669(b)(1) appears to be based on the following
Supreme Court holding: “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].)
• In Casey v. Russell (1982) 138 Cal.App.3d 379 [188 Cal.Rptr. 18], the court
held that an instruction that tracked the language of section 669(b)(1) was
erroneous because it “[did] not adequately convey that there must be some
special circumstances which justify violating the statute.” (Id. at p. 385.) The
court’s opinion cited section 288A of the Restatement Second of Torts for a list
of the types of emergencies or unusual circumstances that may justify or excuse
a violation of the statute:
(a) The violation is reasonable because of the actor’s incapacity;
(b) He neither knows nor should know of the occasion for
(c) He is unable after reasonable diligence or care to comply;
(d) He is confronted by an emergency not due to his own
(e) Compliance would involve a greater risk of harm to the actor or
to others.
According to the Restatement comment, this list of circumstances is not meant
to be exclusive.
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 871–896
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
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
16 California Points and Authorities, Ch. 165, Negligence, § 165.81 (Matthew