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INTRODUCTION
Plaintiff is seeking to recover for injuries allegedly sustained when he was struck by an automobile driven by defendant Driver. Driver had just left a garage that exits onto a one-way alley. Although the alley is posted for one-way traffic, many drivers exiting the garage actually turn the other way. Driver did so, and was traveling the opposite of the posted direction when plaintiff was struck. The fact that Driver was traveling the wrong way in a one-way alley does not, however, in itself establish negligence per se.
ARGUMENT
1. Violation of a statute does not, in itself, give rise to a presumption of negligence.
Vehicle Code section 21657 provides that when a roadway has been designated one-way, a vehicle shall be driven only in the designated direction. Violation of a statute does not, however, amount to negligence as a matter of law under all circumstances. Nowlon v. Koram Insurance Center, Inc. (1991) 1 Cal.App.4th 1437, 1441, 2 Cal.Rptr.2d 683.
Evidence Code section 669(a) provides:
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 injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regula tion was adopted.The burden of proof is on the plaintiff to establish each of the above four elements, and only if all four are established does a presumption of negligence arise. Cade v. Mid-City Hospital Corp. (1975) 45 Cal.App.3d 589, 596-597, 119 Cal.Rptr. 571. The first two elements (violation of the statute, if contested, and proximate cause) are questions for the trier of fact, but the third and fourth elements are issues of law for the court. Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 350, 224 Cal.Rptr. 326.
In the present case, it is conceded that Driver violated Vehicle Code section 21657. Plaintiff, however, will be unable to establish the other three elements.
2. The fact that defendant Driver was traveling the wrong way in a one-way alley was not the proximate cause of plaintiff's alleged injuries.
Plaintiff contends that while crossing the alley he was unexpectedly struck by a car traveling in a direction he did not anticipate. Defendant's evidence will show that plaintiff waited near the garage exit, watched the cars leaving the garage, and, when he saw a likely vehicle that turned against the designated direction, deliberately stepped in front of the car. In other words, the evidence will show that plaintiff deliberately "manufactured" the present claim, and that driving the wrong way in the alley was in no way the proximate cause of any claimed injury.
3. The incident at issue was not the type of occurrence that Vehicle Code section 21657 was designed to prevent, and plaintiff is not one of the class of persons for whose protection section 21657 was adopted.
Roadways are designated one-way in order to facilitate the flow of traffic. Once a roadway has been designated one-way, the reasons for prohibiting travel in the opposite direction are readily apparent. Driving into oncoming traffic can be very dangerous, and will in most cases impede the flow of traffic (facilitation of which is the reason for designat ing roadways one-way in the first place). Any contention that the legislature's intent in providing that motorists shall not drive the wrong way on one-way streets was to prevent vehicle-pedestrian accidents, or to protect pedestrians as a class, would be an unreasonable broadening of what is a perfectly plain purpose.
That the plain purpose of a statute or regulation shall not be gratuitously broadened simply to accommodate a claim of negligence per se is illustrated by Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 94 Cal.Rptr. 49. There, the plaintiff dove into the shallow end of a swimming pool and was seriously injured. The pool was subject to a California Administrative Code section requiring that the pool's deep and shallow sections be separated by a rope and buoys, but no such rope or buoys were present. The plaintiff sought a negligence per se instruction based upon violation of the Administrative Code section. The trial court refused to give the requested instruction, and the appellate court affirmed.
The apparent purpose of the requirement . . . is to warn nonswimmers or poor swimmers of approaching deeper water, to serve as a barrier between the shallower water and the deeper water and to afford support for swimmers who may find themselves in need of it. We believe, as did the trial court, the regulation was designed to prevent drowning accidents and not to protect against diving accidents. The instruction concerning the presumption of negligence arising from the violation of statute or safety regulation should only be given if the court determines, as a matter of law, the injury resulted from an occurrence of the nature of which the statute or regulation was designed to prevent. [Citations.] Having correctly concluded to the contrary, the trial court properly rejected the proposed instruction concerning the regulation providing for the use of a rope and buoys in swimming pools and advised the jury to disregard all reference to the regulation made during the trial.As in Atkins, any request in the present case for a negligence per se instruction based on Vehicle Code section 21657 must be denied because that statute was plainly enacted for reasons other than the protection of pedestrians or the prevention of vehicle-pedestrian accidents.Id., at 422.
CONCLUSION
No presumption of negligence based upon violation of Vehicle Code section 21657 can arise unless plaintiff establishes all four elements set forth in Evidence Code section 669(a), and only if the third and fourth elements are established to court's satisfaction as a matter of law may a negligence per se instruction based on that statute be given.