Negligence “per se” is a legal theory in which negligence is presumed based upon a defendant's violation of a statute or ordinance. In California, a defendant is negligent per se (presumed negligent) when:
- The defendant violated a statute, ordinance, or regulation;
- The violation caused death or injury to person or property;
- The death or injury resulted from an act the statute, ordinance, or regulation was designed to prevent; and
- The person who suffered the death or the injury was a member of a group the statute, ordinance, or regulation was designed to protect.1
Example: Bruce gets into a car accident when he hits a pedestrian and breaks her arm while he is using his cell phone as he is driving. California Vehicle Code 23123.5 makes it unlawful to drive while holding a handheld cellular device. The law is designed to protect other drivers and pedestrians. By violating the law Bruce is presumed to have violated a duty of care to the pedestrian and to be negligent per se.
Negligence per se is a rebuttable presumption. This means the person who violated the law can show that he or she was not negligent by proving that:
- The defendant wanted to comply with the law and his or her actions were reasonable under the circumstances, or
- The person violating the statute was a child who exercised the degree of care ordinarily exercised by children.2
To help you better understand California's negligence "per se" law, our California personal injury lawyers discuss the following, below:
- 1. The legal definition of negligence in California
- 2. Rebutting the presumption of negligence per se
- 3. Defenses to negligence per se in California
To recover damages in a California personal injury case a plaintiff must usually prove that the defendant's negligence was a substantial factor in causing the plaintiff harm.3
Negligence occurs when a defendant:
- Does something that a reasonably careful person would NOT do under the same or similar circumstances, or
- Fails to do something that a reasonably careful person WOULD do in the same situation.
When a statute prohibits or requires a particular action, it is assumed that obeying the law is something that a reasonably careful person would do.
“Per se” is a Latin phrase meaning “in itself.” Therefore, violating a statute is negligence per se -- i.e., it is negligence in and of itself.
In California, the presumption of negligence per se is a rebuttable presumption. That means it can be countered.
Initially, to establish negligence per se the plaintiff must show that:
- The defendant violated a statute,
- The plaintiff was a member of the class the statute was designed to protect, and
- As a result of the violation, the plaintiff suffered harm.
Once the plaintiff establishes this, the burden of proof shifts to the defendant to show that he or she was not, in fact, negligent.
The defendant can do this (rebut the presumption) by showing that even if he or she violated the statute he or she:
- Was a child and exercised the degree of care ordinarily exercised by persons of his or her maturity, intelligence, and capacity under similar circumstances (assuming the violation did not occur during an activity – such as driving -- normally engaged in only by adults and requiring adult qualifications); or 4
- Did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.
Example: In the example set forth above, Bruce proves that he was dialing 911 at the time of the accident because the pedestrian was already injured and covered in blood. If the jury believes he acted reasonably under the circumstances, he will rebut the presumption of negligence notwithstanding his violation of the law.
Defenses to negligence per se in California personal injury cases include (but are not limited to):
- The defendant did not violate a statute;
- The plaintiff was not in the class of people the statute was meant to protect;
- The plaintiff's injuries were not caused by the defendant's violation of the statute;5 or
- The defendant did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.
Injured by someone's negligence in California? Call us for help…
If you were injured by someone else's negligence, we invite you to contact our caring California personal injury lawyers for a free consultation.
Call us at (855) LAWFIRM or complete the form on this page to schedule your free consultation with a lawyer.
California Evidence Code 669; California Civil Jury Instructions (CACI) 418(a); Spriesterbach v. Holland (2013) 215 Cal.App.4th 255.
- CACI 400; California Civil Code 1714(a).
- See Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362.
- David v. Hernandez (2014) 226 Cal.App.4th 578.