Negligence per se allows you to argue that a defendant is presumed negligent.
How? You use a statute or regulation to show that a defendant breached the standard of care. The statute or regulation is the standard, and the defendant’s failure to follow that standard is the breach.
Step 1) Find the Statute or Regulation
For example, you’re injured in a car crash.
Find a statute or regulation that governs the defendant’s conduct. For example, if the defendant is a car driver you look at the California Vehicle Code.
Applicable statutes may include:
- Vehicle Code § 22107 (A driver must not turn from their path or move left or right unless it is safe to do so and only after signaling appropriately)
- Vehicle Code § 21801(a) (A driver intending to turn left shall yield to the right-of-way until the turn can be made safely)
- Vehicle Code § 22350 (A driver must drive at a reasonable speed)
You could also look at California Code of Regulations.
Applicable regulations may include:
- Cal Regs Title 13 § 1212.5 (max driving for commercial drivers)
- Cal Regs Title 13 § 1212 (driver hours of service)
Step 2) Meet the Evidence Code § 669 Requirements
Evidence Code § 669 has 3 requirements you must meet before negligence per se applies:
- Statute or regulation was enacted to protect persons such as the plaintiff
- Defendant’s violation of the statute or regulation was a cause of the plaintiff’s injury
- The plaintiff’s injury was a type of injury the statute or regulation was designed to prevent
You’re injured in a car crash when a defendant truck driver drove too fast and crashed into you. You would argue Vehicle Code § 22350 and Cal Regs Title 13 § 1212.5 were enacted to protect you, a fellow driver, and that the defendant’s violation of those laws caused your injury, and that your injury was a type of injury those laws were designed to prevent.
Conclusion
What you do is “borrow” a statute to prove standard of care and breach. That allows you to show that the defendant is presumed negligent. See too CACI 418.
