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
• Rebuttal of Presumption of Negligence per se: Minor. Evidence Code section
• “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.)
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