Case Number: BC533790 Hearing Date: August 04, 2015 Dept: 92
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

NORCELL O’NEIL,
Plaintiff(s),
vs.

UNION PACIFIC RAILROAD COMPANY, et al.,

Defendant(s).

CASE NO: BC533790

[TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND

Dept. 92
1:30 p.m. — #19
August 4, 2015

Plaintiff, Norcell O’Neil filed this action against Defendant, Union Pacific Railroad Company for damages arising out of injuries sustained when he fell off an allegedly defective ladder on one of Defendant’s railcars. Plaintiff’s complaint includes causes of action for general negligence and negligence per se.

At this time, Defendant demurs to the cause of action for negligence per se. Defendant’s moving papers accurately note that there is no private cause of action for violation of the FSAA. See Crane v. Cedar Rapids & I.C.R. Co. (1969) 395 U.S. 164, 166. Plaintiff concedes as much in opposition, but argues that a violation of the FSAA can give rise to liability for negligence per se. Defendant, in reply, does not dispute this fact. It argues, however, that negligence per se is not a separate cause of action, and is merely an evidentiary doctrine to be invoked at the time of trial.

“Negligence per se” is an evidentiary doctrine codified at Evidence Code §669. Under subdivision (a) of that section, the doctrine creates a presumption of negligence if four elements are established: (1) the defendant 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 the nature of 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. If the presumption of negligence is established under subdivision (a), it may be rebutted under subdivision (b) by proof that the person violating the statute, ordinance or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or the person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, etc.

Thus, the doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. Even if the four requirements of subdivision (a) are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action. Thus, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action. (Quiroz v. Seventh Ave. Center (2006)140 Cal.App.4th 1256, 1285-1286 [quotations and citations omitted].)

The demurrer to the second cause of action for negligence per se is sustained without leave to amend on the ground that a cause of action for negligence per se is not an independently viable tort. The motion to strike is moot in light of the ruling on the demurrer. This ruling has no bearing on Plaintiff’s ability to introduce evidence, in opposition to a motion for summary judgment, at trial, or at any other evidentiary proceeding, concerning his claim for negligence per se. Defendant is ordered to file an answer to the first cause of action within ten days.

Dated this 4th day of August, 2015

Hon. Elia Weinbach
Judge of the Superior Court