negligence per se, Ordaz Law, APC

Negligence Per Se | Personal Injury

In a personal injury lawsuit, alleging that the defendant violated a law or statute raises the presumption that the defendant was negligent. This is called negligence per se.

Continue to read about the application of negligence per se in injury claims and lawsuits.

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negligence per se, Ordaz Law, APC

Negligence Per Se

In personal injury claims and lawsuits where the injuries suffered by the plaintiff are allege to have occurred in a negligence cause of action such as in a car accidentslip and falldog biteaviation accidentwrongful death, etc., the defendant is presumed negligent if:

  • They violated the law (either a statute, ordinance, or regulation);
  • The violation caused the plaintiff’s injuries or death;
  • The death or injury resulted from the kind of occurrence the law was designed to prevent; and
  • The plaintiff was one of the class of persons that the law was intended to protect.

Example Scenario 1: Jane sustained neck and low back injuries when she was rear-ended by Bill on the 5-freeway heading south near National City. At the time of the crash Bill was driving over the speed limit in violation of California Vehicle Code (VC) sec. 22350. Bill’s violation of California’s Basic Speed Law can be used against him to prove that he was acting below the reasonable standard of care while driving his vehicle.

Negligence Per Se | Standard of Care

The application of the doctrine of negligence per se by California courts means that in certain circumstances the courts have adopted the conduct prescribed by statute or regulation as the standard of care for a reasonable person in that situation.

Example Scenario 1 (cont’d): VC sec. 22350 states that no person shall drive a vehicle at a speed which endangers the safety of other drivers. Its application by the courts means that they have adopted this speed law as the standard of care for all drivers and thus, no driver may speed.

Negligence Per Se | Application of State and Federal Laws

State and Federal statutes and or regulations may be alleged to be the standard of care in any injury case, whether the case is brought in State or Federal Court.

Negligence Per Se | Liability

If a jury finds that a defendant violated a law (statute, code or regulation), and that, that violation was a substantial factor in bringing about the plaintiff’s harm, then a jury must find that the defendant was negligent (unless they find that the violation was excused).

Example Scenario 2: Bill steals a red Honda Civic in National City. He is driving the stolen car to a chop shop in Clairemont Mesa. On the drive up the 163 freeway, Bill carelessly rear-ends Stephanie causing her whiplash and neck injuries.  He was not speeding at the time of the crash nor breaking any other laws (other than having stolen a car). Stephanie may allege that Bill’s violation of the penal code amounts to negligence per se but it is unlikely that the presumption would be accepted by the jury. Bill did not crash into Stephanie because he stole a car. He rear-ended Stephanie because he was inattentive.

Negligence Per Se | Rebuttable Presumption

The violation of a law by a defendant may be excused by a jury if:

  • The violation was reasonable;
  • Despite using reasonable care, the defendant was unable to obey the law;
  • The defendant faced an emergency that was not caused by his own conduct;
  • Obeying the law would have involved a greater risk of harm to other; or
  • Any other reason excusing the non-compliance.

Example Scenario 3: Seth is speeding to get to the hospital because he badly inured his hand in a power saw accident. He was cutting some wood for a table he was making when he nearly severed his finger.  He is bleeding profusely while speeding to get to Sharp Hospital. On the way to the hospital, Seth runs a red light and crashes into Lety. Lety suffers injuries and sues Seth alleging negligence per se for the violations of the speed and stop light laws. It will be up to the jury to decide whether Seth’s violations are excused and the plaintiff has to prove negligence through other theories of liability namely common law negligence.

Ordaz Law, APC | Negligence Per Se

Juan J. Ordaz Jr. provides candid, hardworking and personal legal representation to individuals seeking a personal injury lawyer in San Diego County.  We help victims suffering from a variety of injuries, who have sustained their injuries through different types of injury producing events.  We believe that it is a necessity to represent people who have sustained traumatic and debilitating injuries, and suffered ultimate losses.

Call (619) 550-3617 today so that we may schedule your free and discreet consultation with a premier San Diego personal injury lawyer.

We are for Justice no Matter Who it’s for or Against.

Sources and Useful Links:

CACI 418. The Presumption of Negligence Per Se.

CACI 420. Negligence Per Se: Rebuttal Presumption of Negligence (Violation Excused).

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