Recent Success

Negligence Per Se Does Not Create a Presumption of No Triable Issues on Summary Judgment

A defendant's violation of a statute, regulation or ordinance that establishes the standard of appropriate conduct may constitute negligence per se if the violation was the cause of the plaintiff's harm. (Satterlee v. Orange Glenn School Dist. of San Diego County (1947) 29 Cal.2d 581, 588; 6 Witkin, Summary of California Law, Torts §§ 871–896.)  Negligence per se creates a presumption of negligence if: (1) the defendant violated a statute or regulation; (2) the violation caused the plaintiff's injury; (3) the injury resulted from the kind of occurrence the statute or regulation was designed to prevent; and (4) the plaintiff was one of the class of persons the statute or regulation was intended to protect. (Daum v. Spinecare Medical Group (1997) 52 Cal. App. 4th 1285, 1306; Huang v. Garner (1984) 157 Cal. App. 3d 404, 413-414.)  The presumption of negligence may be rebutted by proof that a reasonable person under the same circumstances would have been justified in violating the statute, regulation or ordinance. (Evidence Code section 669; California Service Station & Auto Repair Ass'n v. American Home Assur. Co.(1998) 62 Cal.App.4th 1166, 1171–1172; Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1284–1285.)

The grant of summary judgment/adjudication is the Court’s determination that a party is entitled to judgment as a matter of law. (Code of Civil Procedure section 437c (c).)  A plaintiff seeking summary judgment/summary adjudication predicated on their allegation the defendant was negligent per se must show there are no triable issues of material fact. (Krasley v. Superior Court (1980) 101 Cal.App.3d 425, 432.)  A defendant should oppose summary judgment/adjudication by arguing the first two elements of negligence per se are questions of fact and would not be properly decided by the Court on summary judgment/adjudication.  The defendant should also attempt to rebut the presumption of negligence by demonstrating a reasonable person acting under the same circumstances would be justified in violating the statute.  The presumption of negligence itself creates a triable issue of fact due to the possibility of being rebutted.

On December 19, 2014, shareholders Robert Frank and Matthew Souther encountered such a scenario when they defended a Motion for Summary Adjudication brought by a plaintiff.  In that case, the plaintiff alleged the defendant hospital and physician were negligent per se by violating a statute pertaining to the informed consent requirements for a sterilization procedure.  Plaintiff filed a Motion for Summary Adjudication arguing the court should find, as a matter of law, defendants were negligent because of the violation and sought to disregard the later half of the negligence per se analysis, which essentially amounted to a “strict liability” analysis.

Mr. Frank and Mr. Souther argued the violation of a statute does not amount to strict liability under the law.  They further argued a statutory violation only creates a presumption of negligence that may be overcome by demonstrating the violator of the law did what might be reasonably expected of a physician of ordinary prudence acting under similar circumstances who desired to comply with the law.  The Court agreed with the defense’s arguments and held the violation of a statute only creates a presumption of negligence.  There must also be an evaluation of the reasonableness of the defendant’s actions.  The Court concluded whether or not the defendants were acting reasonably and attempting to comply with the law was a question of fact for the jury.  The Court therefore denied Plaintiff’s Motion for Summary Adjudication.


Robert W. Frank is a shareholder at Neil Dymott and concentrates his practice on the defense of healthcare professionals and general civil litigation. Mr. Frank may be reached at (619) 238-1712 or rfrank@neildymott.com 

Matthew Souther is a shareholder at Neil Dymott. His areas of practice include professional liability, personal injury and general civil litigation. For further information, Mr. Souther may be reached at (619) 238-1712 or msouther@neildymott.com

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