Updated on April 19th, 2023

Car Passenger’s Duty of Care for Own Safety Laws

A passenger is not required to be aware of the conditions on the highway and is entitled to expect that a driver will use reasonable care. However, if a passenger becomes aware of [a danger on the highway] [the driver’s impairment or failure to use reasonable care], then the passenger must take reasonable steps to protect the passenger’s own safety.

  • “ ‘In the absence of some fact brought to his attention which would cause a person of ordinary prudence to act otherwise, a passenger in an automobile has no duty to observe traffic conditions on the highway, and his mere failure to do so, without more, will not support a finding of contributory negligence. In other words, an automobile passenger’s “duty to look” does not arise until some factor of danger comes to his attention, thus charging him as a person of ordinary prudence to take steps for his own safety ’ ” (Casey v. Russell (1982) 138 Cal.App.3d 379, 386-387 [188 Cal.Rptr. 18], internal citations omitted.)

  • “Even when negligence of a driver may not be imputed to him, the passenger is bound to exercise ordinary care for his own safety. He may not shut his eyes to an obvious danger; he may not blindly rely on the driver in approaching a place of danger. He is normally bound to protest against actual negligence or recklessness of the driver, the extent of his duty in this regard depending upon the particular circumstances of each case and ordinarily being a question of fact for the jury.” (Pobor v. Western Pacific Railroad Co. (1961) 55 Cal.2d 314, 324 [11 Cal.Rptr. 106, 359 P.2d 474], internal citations omitted.)

  • When contributory negligence is alleged as a defense, a trial court must instruct on that issue if there is substantial evidence to support it. The requisite standard cannot be met by mere speculation or conjecture. The burden of proving contributory negligence rests upon a defendant. Drust v. Drust, 113 Cal. App. 3d 1.

  • Violation of a statute raises a presumption of negligence per se, provided all the conditions are met. Casey v. Russell, 138 Cal. App. 3d 379.

  • In an action arising out of a two-car collision on a winding mountain road, brought by a passenger against both of the drivers, the trial court committed reversible error in instructing the jury by implication that the ordinary standard of care applied, where neither driver had sounded his horn, despite Veh. Code, § 21662 (requiring drivers on mountain roads to sound horn approaching blind curve if the road is too narrow for two cars to pass), and where the accident occurred in the middle of the road, despite Veh. Code, § 21650, subd. (e) (requiring drivers to drive entirely on right half of the road, unless road is too narrow to do so). Such instruction was misleading in seeming to allow people exercising ordinary care or prudence to be excused from a violation of statute without any additional showing of special circumstances. This resulted in an application of the ordinary reasonable person standard of care without consideration for the effect of the statute. Casey v. Russell, 138 Cal. App. 3d 379.
  • Violation of a statute raises a presumption of negligence per se, provided all the conditions are met. HN4  The negligence per se doctrine in California is codified in Evidence Code section 669:

    “HN5  (a) 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.”

    CA(2)  (2) HN6  Essentially, application of the doctrine of negligence per se means [***5]  that the court has adopted the conduct prescribed by the statute as the standard of care for a reasonable person in the circumstances. (See Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 587 [177 P.2d 279], overruled on other grounds in Alarid v. Vanier (1958) 50 Cal.2d 617 [327 P.2d 897]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 531, p. 2795; Rest.2d Torts (1965) § 286.) In such a case, a violation of the statute is presumed to be negligence.

    Casey v. Russell, 138 Cal. App. 3d 379.

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