The grumpy attorney yelled objection loud enough for people at the back of the courtroom. "A presumption against my client is unwarranted...negligence per se was never discussed before trial!" The judge weighed the objection with a slight tilt of the neck. "Objection overruled. The accident report notates a vehicle code violation. The defendant will be presumed to have been negligent. Of course counselor, you may rebut that presumption."
Clients will often reference legal shows or movies. Most scenes do not depict the reality of a legal case. Prior to a trial, both sides get an understanding of what is going to be admitted into evidence. There are rarely the surprise, or "gotcha," moments.
However, shows and movies reflect true legal doctrines. The hypothetical interaction at the beginning of the blog post between attorney and judge highlights the doctrine: negligence per se. It is a presumption that can help plaintiffs in personal injury accident matters.
What is a presumption? Before one can answer that question, it is important to discuss burdens of proof. In a civil case, the plaintiff has the burden of proving his or her case. If the burden is not met, the plaintiff will lose and the defendant will win. In a civil case, the burden is proof by a preponderance of the evidence (opposed to the more difficult proof beyond a reasonable doubt in a criminal case).
Now, let's discuss presumptions. A presumption is a burden shift. It allows parties to shift the burden of proof, so it gives them a strategical advantage. One such presumption under California law is "negligence per se."
Evidence Code section 669 codifies this common law presumption. It states, in part:
"The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."
When a defendant has violated a statute, say a Vehicle Code section, a presumption can be raised so that the burden is now on the defendant to rebut the presumption, i.e. that the violation was excused. The jury must presume that the defendant is negligent and liable for damages (if causation and damages exist).
Applying the doctrine in a personal injury case is not too difficult. Imagine that a plaintiff is rear ended while driving on the highway. A police report is drafted and the defendant driver who rear ended the plaintiff was cited for speeding, using a cell phone, and making an unsafe lane change. Defendant driver is convicted of all charges. Because the law prohibits speeding, cell phone use, and unsafe lane changes, it is likely that the plaintiff will be able to request a negligence per se presumption at trial. The purpose of those laws are to prevent reckless driving, and promote the safety of other drivers. The elements necessary for an instruction are present.
A case cannot be won simply with a presumption. But, a negligence per se presumption can definitely help. The jury returns after deliberation. The judge waits for them to all sit. He then asks, "Have you reached a decision?" One of the jurors stands up. "We have your honor."