WPI 60.01.01 Violation of Statute, Ordinance, or Administrative Rule—Negligence Per Se

Use this instruction if the statute, ordinance, or administrative rule violated relates to one of the subject areas for which negligence per se applies under RCW 5.40.050: electrical fire safety, the use of smoke alarms, sterilization of needles or instruments used in the practice of body art, body piercing, tattooing, or electrology (or other precaution against the spread of disease), or driving while under the influence. For other violations, use WPI 60.03 (Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence).

This instruction should be given immediately following the enactment or enactments to which it refers. To instruct the jury about the provisions of a particular enactment, see WPI 60.01 (Statute, Ordinance, or Administrative Rule).

If a child has violated a statute, ordinance or administrative rule, see WPI 60.04 (Standard of Conduct for Child—Violation of Statute, Ordinance, or Administrative Rule).

Use the bracketed material as applicable.

RCW 5.40.050. The statute sets forth the general rule that violations of law may be evidence of negligence but do not constitute negligence per se. See WPI 60.03 (Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence).

As an exception to that general rule, the statute provides in part:

RCW 5.40.050.

In Chester v. Deep Roots Alderwood, LLC, 193 Wn.App. 147, 371 P.3d 113 (2016), the court held that absent any statute or regulation that created a duty for tattoo artists to use sterile ink, a tattoo artist, who allegedly used ink that appeared to have been contaminated while being manufactured, was not negligent per se for the plaintiff's adverse reaction to the ink.

To be consistent with other instructions the WPI Committee chose to use the phrase “violation of” rather than the phrase “breach of a duty imposed by” employed in RCW 5.40.050.

By restricting its use to enactments relating to specific subjects, RCW 5.40.050 significantly limits the doctrine of negligence per se. Prior to August 1, 1986, Washington followed the rule that the violation of any statute, ordinance, or administrative rule having the force of law constituted negligence per se.

Not every violation of an enactment or administrative rule relating to electrical fire safety, smoke alarms, improper sterilization of needles (and related activities), or driving while under the influence will constitute negligence per se. As a matter of law, the statute, ordinance, or administrative rule violated must still meet the test set forth in Restatement (Second) of Torts section 286 (1965), before the jury may be instructed concerning negligence per se. See the discussion in the Comment to WPI 60.03 (Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence).

Although the violation of certain statutes, ordinances, or administrative rules may be negligence per se, it does not follow that compliance always constitutes ordinary care. The statutory standard is only a minimum standard, and does not necessarily preclude a finding of negligence for failure to take additional precautions. See Robison v. Simard, 57 Wn.2d 850, 852, 360 P.2d 153 (1961).

RCW 5.40.050 does not mention justification or excuse as a basis to avoid the imposition of the doctrine. However, cases decided prior to the enactment of the 1986 law are clear that justification or excuse may be asserted by the violator. See Wood v. Chi., M., St.P. & Pac. R.R. Co., 45 Wn.2d 601, 277 P.2d 345 (1954); Bissell v. Seattle Vancouver Motor Freight, Ltd., 25 Wn.2d 68, 168 P.2d 390 (1946).