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] violated the law, [he/she] is not negligent because [he/she] 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.

New September 2003

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

  • Evidence Code section 669(b)(2) provides: “The presumption may be rebutted by proof that [t]he person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.”
  • “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 (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 Bender)

33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew Bender)