“Negligence Per Se” in California Personal Injury Cases

In California, negligence per se is a legal principle in which a person is presumed to have acted negligently if they violate a statute and, in so doing, injure someone that the statute was designed to protect. The theory arises in the context of personal injury and wrongful death lawsuits.

In this article, the California personal injury attorneys at the Shouse Law Group law firm will address the following topics:

• 1. Negligence vs. Negligence Per Se
• 2. Rebutting the Presumption
• 3. Defenses
• 4. Negligence Per Se vs. Res Ipsa Loquitor
• 5. In Sum
• Additional Reading

Texting and driving can be an example of negligence as a matter of law.

1. Negligence vs. Negligence Per Se

Ordinary negligence cases occur when a defendant does something – or fails to do something – that a reasonable person would not do under the circumstances. With negligence per se, a defendant’s acts are presumed to be unreasonable as soon as they violate a statute.¹

Negligence per se (also called negligence “as a matter of law”) therefore makes it easier to prove a negligence cause of action and recover damages.²

Example: Hector hits another car after reckless driving in Los Angeles, causing Stacy a broken leg. If Stacy sues under a per se negligence theory, Hector is presumed to have acted negligently because he broke the law by reckless driving. Stacy does not have to make a separate showing that he was unreasonable.

2. Rebutting the Presumption

Negligence per se is a rebuttable presumption in California. This means once you – or your personal injury lawyer – establish negligence per se, the defendant then has the burden to rebut the presumption in attempt to escape liability.

For example, defendants can try to show that they were not negligent by offering evidence that:

1. their violation of the law was reasonable under the circumstances,
2. they were a child and acted with the same level of care as a person of similar age in similar circumstances,
3. the violation was reasonable given the defendant’s disability,
4. they used reasonable care in trying to comply with the law,
5. compliance with the law would have involved a greater risk of harm than noncompliance, and
6. they faced an emergency that was not caused by their own misconduct.³

One defense to “negligence per se” is that there were no injuries.

3. Defenses

In addition to rebutting a negligence per se presumption in California, defendants can use other arguments to challenge these allegations. Common defenses are:

1. the defendant did not violate a statute, law, or ordinance.
2. you were not in a class of people that the law was meant to protect.
3. the defendant’s violation did not cause your injuries.

4. Negligence Per Se vs. Res Ipsa Loquitor

Like negligence per se, res ipsa loquitor is a legal doctrine used in California personal injury cases to show negligent conduct. The theory, though, is different because it uses circumstantial evidence to prove negligent conduct – not the violation of a law.

It allows a judge or jury to infer negligent conduct when the facts show that an accident occurred, and there is no other reasonable explanation for it, but for the defendant’s acts.⁴

Example: A small plane crashes into the ocean on a clear day. An inspection reveals no defective parts, no birds in the engine, and no other planes in the area. The plane’s only passenger was belted into his seat and the pilot was not on the radio at the time of the accident. The logical explanation is that the pilot was negligent in the crash in some way.

In Sum

Here are five key things to know:

1. Evidence Code 669 is the California statute that outlines the negligence per se doctrine.
2. Negligence per se is a rebuttable presumption: Once you establish it, the defendant can counter or challenge it.
3. One way defendants can rebut this presumption is by showing their violation of the statute was reasonable under the circumstances.
4. Negligence per se is a common cause of action in car accident cases involving traffic law violations.
5. Res ipsa loquitor is a similar but separate legal doctrine that establishes negligence by using circumstantial evidence.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• The Need for Careful Application of Statutory Negligence Per Se – Wake Forest Intramural Law Review.
• Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Litigation – American University Law Review.
• Expanding Liability for Negligence Per Se – Wake Forest Law Review.
• Why Negligence per Se Should Be Abandoned – N.Y.U. Journal of Legislation & Public Policy.
• Negligence Per Se and Res Ipsa Loquitur: Kissing Cousins – Wake Forest Law Review.

Legal References: