Negligence Per Se?

Presumption of Negligence

Presumed at Fault Instructions

Negligence can be inferred by a violation of a statute or code. This breach of law creates a rebut-able presumption of negligence in California courts. This is called negligence per se. Some California judges reference this theory of law, as “statutory negligence”, but in law schools, it is “per se“.

Example of Negligence Per Se

A good example to help you understand what negligence per se includes, would be the following hypothetical about a car wreck on a California interstate. If a negligent wrongdoer was in contravention of a Vehicle Code Section, or Statute, and transgression was the proximate cause and actual cause of the mental and physical suffering and other damages, the victim was in the protected class, and the statute or code was written to prevent the type of harm, this is called negligence per se.

Getting a victim leverage by creating a presumption of negligence in the eyes of the insurance adjustor 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 substantial possibility that the at fault factor, whether it was a road condition caused by negligent road maintenance, or by a driver not paying attention to the cars in front of him causing a rear ender, is subject to a negligence per se instruction. This is a legal theory that puts the burden on the accused party to “prove “they were not at fault. This can turn the tables by forcing the accused to rebut that the violation of the statute had nothing to do with the purpose of the statute, that the type of harm the statute was supposed to prevent did not happen, and that the plaintiff was not a person protected within the meaning of the statute. This is a hard burden to turn once the bell has been rung.

While many excellent PI attorneys understand the doctrine, many newbees, or lazy ones don’t know how to plead this theory, and some possibly don’t even care. Normally, the party asserting the claim has the burden of proof. So obviously, this can be a useful tool to help a victim gain leverage in an accident case where a violation of a pertinent statute is evident. Perhaps the guy who hit you ran a red light?  This is clearly negligent, but it is also a violation of the CVC. So if the other elements are met, you certainly have a stronger case as a claimant.

But 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 harm and harm caused, that’s negligence per se!