Negligence Per Se in California & How it Affects Your Personal Injury Case

Posted on November 15, 2022 by bermanstaff

You have probably heard the term “negligence,” especially how it applies to personal injury cases. When someone is negligent and causes another person injury, the law says they are responsible for paying for the injured person’s losses and suffering. Proving negligence is not always easy as there are several elements of negligence that must be established. However, there is another legal principle that can make it easier to win a personal injury case.

If the at-fault party caused your accident because they were breaking the law, “negligence per se” is an important legal doctrine that can reduce your burden of proof and make it easier to recover the compensation you deserve.

Here is how the California negligence per se doctrine works and how it can play a crucial role in your personal injury lawsuit.

What Is Negligence Per Se?

Negligence per se is a legal doctrine that presumes someone is negligent if they caused injury to someone else because they violated the law. The legal negligence per se definition is covered by California Evidence Code Section 669.

To win a personal injury case, you must prove the defendant was negligent and their negligence was a major factor in causing your injuries. In a typical case, this requires proving the defendant did not behave in a way a reasonable person would have in the same circumstances. Negligence per se means the defendant’s actions are already presumed to be unreasonable once they violate the law.

Negligence per se example:

Joe strikes another car in an intersection. Rebecca, the other motorist, suffers a fracture and concussion. Police cite Joe for speeding and texting while driving.

Rebecca files a lawsuit against Joe seeking compensation for her injuries. During the trial, Rebecca establishes Joe was negligent per se because he violated laws designed to avoid accidents. She does not need to separately show that Joe’s behavior was unreasonable when he caused the accident.

Negligence Per Se Elements

There are four key elements of negligence per se. To establish negligence per se, you must show:

  • The defendant violated a statute or regulation designed to protect people from harm,
  • The violation was a proximate cause of your injuries,
  • The harm you suffered was the type of harm the statute was designed to prevent, and
  • You were a member of the class of people the statute was intended to protect.

To prove the first element, your case must show that the defendant violated a specific statute or regulation. In a car accident, this may involve showing the defendant was speeding, driving under the influence, texting while driving, or committing another type of traffic violation.

To have a valid case for negligence as a matter of law, you must be a member of the class of people the law was designed to protect and you suffered harm the law was intended to prevent. This is straightforward with traffic violations: traffic laws are designed to prevent accidents and injuries to other motorists, pedestrians, cyclists, and passengers.

Finally, you must show that it’s more likely than not that the defendant’s conduct and violation of the law was a proximate cause of your injuries. Proving causation can be straightforward, but it isn’t always clear. There are also two elements to causation: the actual cause and the proximate cause. Actual cause is the action that instigated the accident or harm. Proximate causation means something was a significant factor in causing the accident or harm.

Actual cause is easy to establish in some cases such as a motorist running a red light and hitting someone in the intersection. Proximate cause can be more complicated. To prove the defendant’s violation of the law caused your accident, the court may consider:

  • A “but-for” test. But for the defendant’s violation of the statute, would the accident still have happened? If not, this may be enough to show their behavior caused the accident.
  • Significant factor test. Was the defendant breaking the law a significant factor in the accident? If the behavior was too far removed from the accident, it may not be considered a cause of the accident.
  • Could the defendant have foreseen that their behavior could have caused an accident?

What Is the Difference Between Negligence and Negligence Per Se?

The general standard of negligence requires proving four elements:

  • The defendant owed the plaintiff a duty of care,
  • The defendant breached this duty,
  • The defendant’s breach caused the plaintiff’s injuries, and
  • The plaintiff suffered damages.

The doctrine of negligence per se can be used to prove the first two elements of negligence: standard of care and duty of care. By establishing negligence per se, you have shown the defendant owed you a duty of care (you were someone the statute was designed to protect) and they violated the standard of care you were owed by violating the law.

This means it is no longer up to a jury to decide what the standard duty of care was in your circumstances, or how a reasonable person would have behaved. They are also not left to decide if the defendant’s behavior was outside of what a reasonable person should have done.

Negligence Per Se Is a Rebuttable Presumption

It’s important to understand that negligence per se can be rebutted. This means the defendant has the right to submit their own evidence to counter that they were negligent. However, establishing negligence per se shifts the burden of proof from the plaintiff to the defendant who must now prove they were not negligent when they violated the law.

According to Evidence Code Section 669, the presumption of negligence can only be rebutted by proving:

  • The defendant violated the statute while acting in a way that could be reasonably expected from someone in a similar scenario who wanted to comply with the law, or
  • The defendant was a child and exercising care ordinary for someone of the age, but not if they were engaged in activity normally engaged in by adults only and requiring adult qualifications (such as driving).

Once you have established negligence per se, it isn’t easy to counter. The defendant must provide evidence that a reasonable person could be expected to break the law in the situation. They may submit evidence that:

  • They still exercised reasonable care in trying to comply with the statute,
  • The defendant had an incapacity that made it reasonable to violate the statute,
  • The defendant could not comply with the statute even when using reasonable care,
  • Complying with the law had a greater risk of harm to them or others, or
  • They were faced with an emergency that they did not cause that required them to violate the law.

While difficult, it isn’t impossible to counter negligence per se. If the defendant’s brakes failed and they could not slow down before the accident, they may not be found negligent per se. A defendant talking on the phone while driving may have a valid excuse if they were reporting an emergency like an injured pedestrian they passed on the street. A driver may also have a valid excuse for speeding if they were transporting someone to the doctor or hospital whose condition suddenly worsened.

How Negligence Per Se Affects California Personal Injury Cases

If you believe the at-fault party was violating the law when your accident occurred, the negligence per se doctrine can make it easier to win your case. By proving negligence per se, you do not need to prove the standard of care and how the defendant’s behavior differed from how a reasonable person would have behaved in the same circumstances. You have also shown that the defendant’s actions were a proximate cause of your accident.

Proving negligence per se alone isn’t enough to win your case. You must still show actual causation, generally the easier aspect of causation to establish, and your damages. However, it makes the burden of proof much lower and shifts the burden to the defendant. If the jury does not find the defendant was negligent per se, they will still consider other evidence in your case to decide if the defendant was still otherwise negligent.

A California personal injury lawyer will present the strongest case possible to establish negligence per se. Depending on the circumstances of your accident, proving the defendant violated the law may involve:

  • Police reports
  • Citations issued after the accident
  • Traffic camera footage
  • Eyewitness statements
  • Photos of the scene of the accident
  • Medical records
  • Expert testimony

Juries in California are given California Jury Instruction CACI 418 or “Presumption of Negligence per se” to help them determine when a defendant is negligent as a matter of law. The instructions clearly state that if the plaintiff proves the defendant violated the statute in question and it was a substantial factor in causing the harm, the jury must find the defendant was negligent without a valid excuse.

If you have been injured due to someone else’s careless, intentional violation of the law, Berman & Riedel, LLP is ready to fight for you. Our San Diego law firm represents clients throughout California in cases involving car accidents, bicycle accidents, dangerous products, and more. Contact our law office today to schedule a free consultation with a San Diego personal injury lawyer to discuss your case and how we can help.


About Berman & Riedel, LLP firm managing partner attorney William M. Berman:

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Attorney William M. Berman focuses his practice in the areas of catastrophic personal injury, wrongful death and elder abuse and neglect. Strictly a plaintiffs’ dedicated firm, he never represents insurance companies in the defense of claims. Mr. Berman’s firm remains staunchly committed to helping those who have suffered serious injury or loss due the negligence, intentional misconduct or wrongful acts of others. Mr. Berman has grown his firm to what is considered one of the largest and most successful elder abuse/neglect practices within California. Through his continued successes in handling claims involving nursing home and elder abuse and neglect, Mr. Berman remains a prominent figure in advocating on behalf of this vulnerable class of citizens.
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Frequently Asked Questions

Below are answers to common questions people have about personal injury cases and working with a lawyer. During your initial consultation, we will be happy to answer questions that are particular to your case.

How Much Does It Cost to Hire a Personal Injury Attorney?

The attorneys at Berman & Riedel, LLP, accept cases on a contingency-fee basis. This type of agreement means you do not pay any attorneys’ fees out-of-pocket for legal representation. Attorneys’ fees are also contingent on the outcome of your case.

You benefit from legal representation in exchange for an agreed-upon percentage of a settlement or jury award. We will only recover a fee if you recover compensation.

Can You Tell Me How Much My Case Is Worth?

There is no way to determine the exact value of a personal injury case, especially early in your case. However, an experienced attorney can give you an estimated range based on their experience with similar cases.

There are many factors that may influence the value of your case, such as:

  • Your total financial or economic damages
  • The severity of your injuries
  • The impact of your injuries on your daily life
  • The strength of your case
  • Whether you share fault for your accident
  • Insurance policy limits 

Some damages are easy to calculate, such as lost wages and medical bills. Calculating the value of diminished earnings for the rest of your life or future medical needs; however, may require the help of experts. Non-economic damages like pain and suffering have no intrinsic financial value. These damages are challenging to calculate. 

If your case goes before a jury, you may potentially be able to recover more than you could through a settlement. However, this introduces a new element of risk: the jury. The circumstances of your accident and even how sympathetic you or the defendant are can influence the outcome.

During your consultation, and throughout your case, we will help you understand how these factors influence your case. We will also work tirelessly to document the value of all your damages and pursue maximum compensation on your behalf.

Will My Case Go to Trial?

The vast majority of cases are resolved by reaching a settlement agreement outside of court. Very few personal injury cases actually go to trial, but it is more likely if the facts in your case are in dispute, a legal issue is being contested, or you have a high-value case.

An experienced lawyer will build your case as if it will go to trial from the beginning. The stronger your case and evidence, the more likely a fair settlement will be reached.

How Do I Know If I Need a Personal Injury Lawyer?

If your case involves mostly property damage or minor injuries, you likely do not need a lawyer to handle a claim with the insurance company. The more serious your injuries, or the more complex your case, the more important it becomes to seek experienced legal counsel.

Remember that the insurance company is not on your side, even if the insurance adjuster seems sympathetic and you receive a settlement offer. If you are being blamed for your accident or sustained serious injury, a lawyer will help you protect your rights and build the strongest case possible. This includes calculating the full value of your current and future losses.

Legal representation is also vital if your case involves a complex area of law such as elder abuse or neglect, premises liability, commercial vehicle accidents, medical malpractice, or serious work-related accidents. Determining liability, navigating decades of legal precedence, and interpreting specific statutes in these cases is best done with years of relevant legal experience.

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While our law office is located in San Diego, Berman & Riedel, LLP, accepts cases throughout the state of California.

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