You’ve heard of Negligence, but What is Negligence Per Se?

The term “negligence” is usually understood to be a failure to exercise the ordinary care of a prudent person.  But what if the claim of negligence is based on a defendant’s violation of a statute, ordinance or public safety regulation?  This is known as “negligence per se,” which presumes defendant’s duty and breach (failure to exercise due care); the only issue left for an injured plaintiff to prove is whether the violation proximately cause the injury or death.  (Evidence Code section 669).  Evidence Code section 669 codifies the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant’s failure to exercise due care is presumed if:

  1. Defendant violated a statute, ordinance or safety regulation of a public entity;
  2. The violation legally caused injury or death;
  3. The occurrence resulting in the injury or death was of a nature that the statute, ordinance or regulation was designed to prevent; and
  4. The victim was among the class of persons for whose protection the statute, ordinance or regulation was adopted (Evidence Code section (669(a)).

The practical impact of proving a negligence per se violation, once established, is that it shifts the burden of proof.  Ordinarily, a plaintiff has the burden of proving negligence, but here that negligence is presumed against the defendant, who then must rebut that presumption if they have evidence to do so (e.g., defendant might show they did what a person of ordinary prudence would be expected to do who desired to comply with the law (Evidence Code section 669 (b)(1)).  Section 669 (b)(1) essentially recognizes a defense of “excuse” or “justification” – i.e., that defendant was faced with circumstance preventing compliance or justifying noncompliance with the statute, ordinance or safety regulation.

A current Janssen Malloy LLP case illustrates the issue of negligence per se.  Our client was walking down the sidewalk in Eureka when he inadvertently walked into a guy wire that stabilized a utility pole, suffering a laceration and subsequent septic infection in the wound site, requiring a prolonged hospitalization.  The guy wire came down from the pole and was secured in the middle of the sidewalk concrete, and visually lined up with pole from the direction our client was walking where one could not see it.  Such guy wires are required to have protective plastic sleeves and reflectors on them to alert pedestrians and prevent a person walking into or cutting themselves on the wire cable of the guy wires.  Public Utility Commission (PUC) requirements and the California Code of Regulations require such protective coverings on such wires.  The failure of the owner of the pole and guy wires to comply with an ordinance gives rise to the doctrine of negligence per se in this case.

The shift in the burden of proof under Evidence Code section 669 is a powerful arrow in the quiver of plaintiff’s counsel, and makes it much more likely an injured person can be fairly compensated when a defendant or corporation fails to comply with ordinances designed to protect the public.