Sep 12, 2020

Negligence Per Se - What is It?


Negligence per se, also known as statutory negligence, is an inference of negligence brought about by a violation of a statute or code. This breach of law creates a rebuttable presumption of negligence in California courts. Some California judges reference this theory of law, as "statutory negligence," but in law schools, it is "per se."


Negligence Per Se - Presumption of Negligence In Car Accident Cases?

Los Angeles Personal Injury Lawyers - Ehline Law Firm Accident Law Firm.Car accidents don't happen in a vacuum. There are many potential causes of such crashes and how they could occur. If there is a California Vehicle Code Section designed to prevent a specific type of person from being hurt by a particular kind of accident, or injury, and harm took place from a violation, a presumption of negligence may exist. It is essential to weigh all of these factors when trying to piece together the whole picture. While independent research and police reports may undoubtedly help, usually, the keystone to understanding it all is a skilled attorney.

Expert Los Angeles area personal injury attorney, Michael Ehline, explains how certain factors can affect why accidents can happen and how the law deals with them. Strict liability and presumption of negligence are two vital areas of law that must be considered in such cases.

Also, a vehicle with bad tires, brakes, and perhaps a faulty clutch, could get into an accident. And when a vehicle owner knows such risks yet does nothing, they can be held liable.


What is the Difference Between Strict Liability?

Strict liability states that certain parties responsible for a tort, in this case, a car accident, by virtue of their superior status can be held strictly liable whether they were negligent or not. For example, a taxi cab or bus driver is a professional with your life in his or her hands. Hence, these defendants can be held strictly liable when an accident occurs.

Strict Liability Defined as:

"In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant." (Source).

Contrasting this with negligence per se, which depends upon the violation of a statute or code, strict liability would exist for parties such as cruise ship operators, or cab drivers, for example, to a passenger. They owe a special duty of care to prevent injuries to their fares that becomes automatically triggered by their status as common carriers for hire. Are you getting this so far? An experienced auto accident lawyer can explain the details more thoroughly if you're still confused.


What is An Example of a Negligence Per Se Car Accident Claim?

A good example to help you understand what negligence per se includes the following hypothetical about a car wreck with allegations of drunk driving on a California interstate. Violation of a Vehicle Code section meeting the elements of negligence per se becomes conclusive evidence of duty and breach unless rebutted.

Let's pretend that rider A is stopped behind about vehicle, at a stoplight, sitting on his motorcycle, and in compliance with the law. Behind A is B, who us under the influence of alcohol and drugs in a fast-approaching Big Rig Truck. B fails to stop, and B hits rider A, killing A after running A's motorcycle over. Later, at the hospital B tested positive for Crystal meth and was over 0.10% blood alcohol content. ("B.A.C.").

  • California Vehicle Code Section 23152 (a) says it is against the law for someone under the influence of an alcoholic beverage to operate a motorized vehicle.
  • California Vehicle Code Section 2315d (b) says it is unlawful for a person to have 0.08% B.A.C., or a greater amount of alcohol by bodyweight, to operate a motorcar.
  • California Vehicle Code Section 23152 (f) says it is unlawful for someone under the influence of any drug to drive a motor vehicle.
  • California Vehicle Code Section 23152 (g) says it is unlawful to drive under the combined influence of alcohol or drugs.

Since B killed A in a drunk and impaired by drugs while driving accident, B violated all four of the above statutes. Either one of their violations could be used to help establish a presumption of negligence element of a future wrongful death lawsuit filed by A's surviving spouse or kids. Because A was in a group protected by the statute, or code (other road users, pedestrians, motorcycle riders, and vehicle occupants) and the defendant violated the laws designed to prevent that type of harm, the court may issue the rebuttable presumption of negligence instruction and move on to the damages phase.

If a driver strikes another person and in the process is also violating a traffic law, the driver may be negligent under this doctrine of law. But again, the violation must be the direct result of the mishap. However, the plaintiff will need to look at the legislative intent. DUI statutes are designed to prevent deaths and serious injuries, and that is the direct intent. But a simple moving violation may merely be intended to make traffic flow more smoothly. So, in that case, the court would not issue a negligence per se jury instruction under CACI No. 418.

Moreover, the Vehicle Code is a floor and not a ceiling. So let's suppose the defendant did not violate the vehicle code and still caused a car crash. Compliance with the Vehicle Code is not a get out of jail free card. The defendant would simply be judged under ordinary negligence principles, because the Vehicle Code is only a guidebook, and it requires common sense, not just blind obedience. To learn more about the nuances, you can always contact a Los Angeles car accident lawyer.

Are There Any Exceptions to Negligence Per Se?

Yes. Exceptions do apply when:

  1. Complying with the statute would have caused more harm than good.
  2. Compliance was impossible due to a matter beyond the defendant’s management.

So even if the four-part test is met, if an exception applies, there will be no presumption of negligence. If not, the negligent wrongdoer was in contravention of a Vehicle Code Section, or Statute.

The transgression must have been the proximate cause and actual cause of the mental and physical suffering and other damages. And the victim must be in a protected class. Was the statute or code created to prevent the type of harm?  If so, this is called negligence, per se.


Can This Per Se Jury Instruction Create Leverage in Your Potential Suit?

Getting victim leverage by creating a presumption of negligence in the eyes of the insurance adjuster and later defense team(s), is always a good thing for a person seeking a monetary payout for bad injuries. There is always a very strong possibility that the at-fault factor is subject to a negligence per se instruction.

So this is a legal theory that puts the burden on the accused party to "prove "they were not at fault. This burden can turn the tables by forcing the accused to rebut that the violation of the statute. A defendant can say it had nothing to do with the purpose of the law. But once the bell is rung, this becomes a hard burden to rebut.


Does Your Lawyer Even Plead This Theory?

While many excellent PI attorneys understand the doctrine, many newbies, or lazy ones don't know how to plead this theory, and some people possibly don't even care. Usually, the party asserting the claim has the burden of proof. So naturally, this can be a useful tool to help a victim gain leverage in an accident case. Perhaps the guy who hit you ran a red light?  This violation is negligent, but it is also a statutory violation of the CVC.  But you certainly have a more durable case if all the elements remain present.


Negligence Per Se is Not Just for Car Accident Cases?

But other statutes exist besides the Vehicle Code. There are Building Codes, City Codes, Health and Safety Code, the violations of which could bring this theory into play. Examples include injuries like those from a trip, slip, and fall on a public or private sidewalk. Or it could even be a violation of the California elder abuse statutes against an innocent senior citizen.

If the statutes fit the elements, protected person, harm, type of damage and injury caused, that's negligence per se! Many issues are at play here, and all of them require the help of a skilled attorney. Ehline Law's experience assisting in hundreds of cases has rebuilt many lives after auto accidents. Let a lawyer help you know what exactly negligence per se is and why it matters.