Cheong v. Antablin

WERDEGAR J., Concurring.

I have joined the majority opinion because I agree generally with its reasoning and concur in the result. The majority correctly observes in order to decide this case we “need not resolve” (maj. opn., ante, at p. 1071) whether or how Evidence Code section 669 (section 669) may affect a plaintiff’s burden of proof in tort litigation generally, or revisit the complex of related issues that led to our fragmented decision in Ford v. Gouin (1952) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 , 34 A.L.R.5th 769 ] (Ford). Nevertheless, Justice Chin writes separately, suggesting plaintiff’s claim also may be rejected on the ground section 669 “does not affect the assumption of risk principles established in Knight [v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ]]” (conc. opn. of Chin, J., post, at p. 1078). In my view, that suggestion unjustifiably departs from the plain language of section 669 and does not accord with long-standing precedent respecting the negligence per se doctrine.

Justice Chin implicitly argues that section 669 may never bear on a plaintiff’s burden of proof as to the existence vel non of a tort duty (see conc. opn. of Chin, J., post, at p. 1079 [noting “[t]he word ‘duty’ does not appear in the statute,” and opining section 669 “states a rule of evidence only—a presumption of the failure to use ‘due care’ ”]) and suggests “due care” therein invariably means ordinary care (see ibid, [defining “the general duty to use ‘due care’ ” as the duty to “not act negligently”]).

I am not persuaded. Section 669 codifies the common law doctrine of negligence per se. (Vesely v. Sager (1971) 5 Cal.3d 153, 164 [ 95 Cal.Rptr. 623 , 486 P.2d 151 ]; see generally, 6 Witkin, Sumrpary of Cal. Law (9th ed. 1988) Torts, § 819, pp. 171-173.) That doctrine has long been understood to affect a plaintiff’s burden of proof as to the existence vel non of a tort duty, as well as the adequacy of the defendant’s conduct. (See, e.g., Veseley v. Sager, supra, 5 Cal.3d at p. 164 [discussing section 669 and stating “[a] duty of care, and the attendant standard of conduct required of a reasonable man, may of course be found in a legislative enactment which does not provide for civil liability”]; Richards v. Stanley (1954) 43 Cal.2d 60, 63 [ 271 P.2d 23 ] [“[g]iven a statute prohibiting the leaving of the key in an unattended vehicle *1077 on the public street, it could reasonably be contended that the Legislature had established a duty on the part of motorists to protect persons on the streets from any damage caused by thieves driving stolen automobiles”]; Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 595 [ 177 P.2d 279 ] (conc. opn. of Traynor, J.) [noting the “standard [expressed in a criminal statute] determines civil liability, not because the Legislature has so provided, but because the courts recognize that, with respect to the conduct in question, the duties of the parties are determined by the statute”].)

A plain reading of section 669 suggests the presumption arising thereunder is one of “failure of a person to exercise due care” (§ 669, subd. (a)), i.e., the care that is “due” in the context governed by the relevant “statute, ordinance, or regulation” (id., subd. (a)(1)). Justice Chin apparently sees in section 669’s “location in the Evidence Code” (conc. opn. of Chin, J., post, at p. 1079) support for departing from the statute’s plain language, so as to construe “due care” as “ordinary care,” but I do not. Mere “location of an enactment in one particular code as opposed to another is ‘generally among the least helpful indicia of legislative intent.’ ” (People v. Andrade (1983) 141 Cal.App.3d Supp. 36, 39 [ 190 Cal.Rptr. 738 ], quoting Dunlop v. Tremayne (1965) 62 Cal.2d 427, 429, fn. 2 [ 42 Cal.Rptr. 438 , 398 P.2d 774 , 17 A.L.R.3d 368 ].)

Nor does citation to a terse Law Revision Commission comment persuade me the presumption arising under section 669 “ ‘is one of simple negligence only’ ” (conc. opn. of Chin, J., post, at p. 1079, quoting Cal. Law Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 669, p. 264), irrespective of the context. The commission’s comment is not explained, and its sole support, a 1931 Court of Appeal opinion, held only that the particular jury instructions in that case, including one stating, “the violation of the speed statute was simple negligence” and “that alone was not sufficient to constitute gross negligence,” were as a whole fair to the defendant. (Taylor v. Cockrell (1931) 116 Cal.App. 596, 599 [ 3 P.2d 16 ].) In the same comment, when describing the effect of the statutory presumption, the commission states, “if it is established that a person violated a statute under the conditions specified in [the statute], the opponent of the presumption is required to prove . . . that the violation of the statute was reasonable and justifiable under the circumstances.” (Cal. Law Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code, supra, foll. § 669, p. 264.) In this respect, therefore, the comment seems to suggest, as the plaintiff here argued, that if a plaintiff who is a participant in an active sport is also a member of the class of persons intended to be protected by a statute, then section 669 may transform an appropriate statute into a legal duty of due care upon the defendant.

*1078 The construction of “due care” most obviously in accord with our previous pronouncements would seem to be not ordinary care, but the care to comply with the applicable statute, i.e., when plaintiff proves defendant violated an applicable statute and section 669’s other requirements are satisfied, a presumption arises satisfying plaintiff’s burden of proving both (a) that defendant owed plaintiff a tort duty to exercise care when engaging in the type of conduct underlying the violation and (b) that defendant’s conduct breached this duty. (See Satterlee v. Orange Glenn School Dist., supra, 29 Cal.2d at p. 596 [“Where a statute defines the standard of care. . . no other measure may be applied in determining whether a person has carried out the duty of care imposed by law.”].)

For the foregoing reasons, as well as for the reasons stated in the majority opinion, I have joined the majority in rejecting plaintiff’s claim on the grounds it is barred by our decision in Knight , rather than adopt the approach suggested in Justice Chin’s concurring opinion.

George, C. J., concurred.