Presumption of Negligence

Negligence Per Se in California Car Accidents

Usually, driver liability for negligence requires proof of a violation of the duty to exercise reasonable care. However, in some cases, there is a legal presumption of that violation in which case the driver is negligent per see (‘by itself’).

There is a presumption that a driver failed to exercise reasonable care if the following are present: 

  • The driver violated a statute, ordinance, or public entity’s regulation (like violating the speed limit); 
  • The death/injury to a person or property is due to the violation; 
  • The death/injury resulted from an occurrence that the nature of the statute, ordinance, or regulation is designed to prevent; and
  • The person who died or was injured was one of the classes of persons for whose protection the ordinance or regulation was adopted.

See California Evidence Code 669

See CACI No. 418 to see how Judges instruct juries on negligence per se.

The presumption of negligence that arises by statute, in this case, is rebuttable. That means a driver can give an excuse or justification for their actions in court and support their defense with evidence. In turn, a valid reason on the driver’s part will rebut (overturn) the presumption of negligence. 

If you were involved in an auto accident and the driver is trying to avoid liability, call personal injury attorney Jin Kim at (916) 270-6880 for a free consultation.

Excuses Based on Specific Circumstances

Any argument to rebut the presumption of negligence will be considered in light of the facts and circumstances, so it’s essential to know the facts of a case. Providing an excuse is a question of fact, meaning it has to be proven in court.

How I Can Help You

I help clients secure financial compensation for their injuries. Specifically, I help injured clients recover compensation from insurance companies, negligent drivers, and other liable parties.

The first step to financial recovery is a free consultation. Call my office at (916) 270-6880 Monday – Saturday from 8 AM to 6 PM to learn more about your personal injury rights and damages.

Independent Force

One valid argument in rebutting the presumption of negligence available to drivers is an independent force over which the driver had no control. For example, in one case, a driver who illegally parked on a driveway avoided liability when the driver showed that the car had run out of gasoline despite earlier careful inspection.


Another justification that a driver may use is the presence of an emergency. In a previous case, a driver was excused even though the car veered into the wrong lane. It was because the steering mechanism had failed. The court was satisfied that there was no way for the driver to have anticipated the defect in the mechanism earlier.

Not Personal Convenience

Mere personal convenience on the part of the driver, however, is not considered a valid excuse. Violation of an ordinance prohibiting double parking merely because there were no available parking spaces did not excuse the driver’s negligence in double parking.

Limitation of Proximate Cause

The act or omission of the driver must be the proximate cause of the victim’s injury. For example, a victim who suffers a fractured skull must prove he sustained fractured because the driver hit him. Failure to prove causation will lead to a limitation of the driver’s liability. Most of the time, the court must affirm is a question of fact in court. 

The presumption of proximate cause may be a question of law rather than a question of fact when: 

  • A party violated a statute or ordinance designed to prevent the very type of injury suffered. 
  • The violation continued until the moment of impact; and
  • The injury would not have occurred but for the violation of the statute or ordinance.

Class of Persons & Type of Harm

The victim who suffered injuries must also belong to a class of persons whose benefit the law was created. In a similar vein, the harm sustained by the victim must be contemplated and sought to be prevented by the law. Failure to meet these requisites can lead to extinguishment or limitation of the driver’s liability.

As an illustration, there was a prohibition on radiator ornaments on a truck in a previous case. A child was running and hit the hood ornament on a parked truck, losing an eye in the process. The court ruled that the victim could not claim damages because the purpose of the law prohibiting radiator ornaments was to prevent hazards to other vehicles and was not designed to cover pedestrians. It was also not intended to avoid the type of harm sustained in this case.

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