Copyright 1965, American Law Institute
RULES AND PRINCIPLES
Division Two - Negligence
Chapter 12 - General Principles
Topic 3 - Determination of Standard of Conduct
Title A - Function of Legislation
§ 288A EXCUSED VIOLATIONS
(1) An excused violation of a legislative enactment or an administrative
regulation is not negligence.
(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor's incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or
COMMENTS & ILLUSTRATIONS: Comment:
a. The list of situations in which a violation may be excused is not intended to be exclusive. There may be other excuses.
b. Violation and excuse. In many of the situations in which the conduct of the actor is excused, such conduct is simply not a violation of the statute, ordinance, or regulation, for any purpose. Thus where at night the rear light of an automobile goes out without the driver's knowledge, and this immediately leads to a collision, it would in all probability be held even in a criminal prosecution that the statute requiring a light is subject to an exception in such a case, and so has not been violated at all.
There may, however, be cases in which particular conduct may be excused for the purposes of a negligence action where it would not be excused in a criminal prosecution; or where it may be excused for criminal but not for civil purposes. For example, an impounding ordinance may provide that cattle shall not be permitted to run at large, and that if they are at large the owner shall be liable for impounding fees. When a cow escapes after the owner has used all reasonable care to confine it, the excuse may not be recognized as valid so far as his liability for the impounding fees is concerned, since if such liability were conditioned on failure to use reasonable care, collection of the fees would be made more difficult and expensive. But in an action on the basis of negligence for harm done by the cow, the excuse may still be recognized as valid.
Since the court acts under no compulsion in accepting the standard of conduct defined by the enactment or regulation as that of a reasonable man in a negligence action (see § 286, Comment d), it may also recognize in the negligence action excuses for such conduct which would not be recognized in a criminal prosecution, or refuse to recognize for tort purposes an excuse which it would recognize as to the crime.
This Section lists some of the more common situations in which the court will ordinarily recognize an excuse for conduct which violates the terms of a legislative enactment or an administrative regulation. The Section is concerned only with the recognition of such excuses in negligence actions, and no distinction is made between those excuses which would be recognized for other purposes and those which would not.
c. Excuse not permitted. There are statutes which prohibit an act or omission under particular circumstances, irrespective of whether the actor knows or could in any possible way learn of the circumstances, or could in any way avoid the act or omission, or may have any other excuse whatever. Thus statutes prohibiting the employment of children below a certain age at or about dangerous machinery usually have been construed to make their employment a crime, and to result in tort liability, even though the employer does not know and could not possibly learn that the child is below the statutory age. The Federal Safety Appliance Act has been construed to require railroads engaged in interstate commerce to provide safety devices, such as automatic couplers, in good working order, for the protection of their employees, and to permit no excuse because of the failure of the device to operate, or all possible diligence and care to provide it. Such statutes in reality result in strict liability, although the courts have continued to speak of liability for negligence. When they are adopted by the court as defining a standard of conduct for a tort action, the standard adopted is one of strict liability, and the statute is still construed to permit no excuse. On the same basis, a particular statute may be construed not to permit a particular excuse, although it may permit other excuses.
1. A Pure Food Act, which provides that any person selling unwholesome or poisonous food shall be guilty of a crime, is construed to mean that he shall be guilty irrespective of care used in the preparation of the food. A sells to B a turkey sandwich which is contaminated and unwholesome, and as a result B is made ill by food poisoning. A has exercised all possible diligence and care in purchasing the ingredients and preparing the sandwich, and is in no way negligent. A is subject to liability to B under the statute.
d. Recognition of excuses. Most legislative enactments and administrative regulations receive no such strict construction. Even in criminal prosecutions excuses for their violation are frequently recognized; and when the provision is adopted by the court as defining a standard of conduct for the purposes of a negligence action, the possibility of a valid excuse for the violation is carried over. The extent to which such excuses will be recognized is in large part a matter of the type of statute and the purpose which it is intended to accomplish, together with the variety of situations which may arise, so that general rules are difficult to lay down. Where, as in the case of the rules of the highway, the legislation is adopted in a field where the common law has already recognized a number of excuses for conduct which would otherwise be negligent, such excuses may continue to be recognized when the court adopts the statute as a standard.
Comment on Clause (a):
e. Incapacity. Where the actor does not have the capacity to comply with the legislation or regulation, his violation of it will ordinarily be excused. Thus a blind man may not be negligent in failing to comply with a traffic signal which he cannot see, although he may be negligent at common law in failing to inquire about it if he knows it is there. Similar allowance is made for the incapacity of children due to their immaturity.
2. A statute provides that pedestrians shall not step into the street without looking in both directions for approaching traffic. A, a boy eight years of age, dashes into the street without looking, in pursuit of a ball. A's violation of the statute may be found not to be negligence if his conduct was reasonable for a child of similar age, intelligence, and experience.
Comment on Clause (b):
f. Knowledge. Where the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation, his violation of it will ordinarily be excused.
3. A statute provides that no vehicle shall be driven on the public highway at night without front and rear lights. While A is driving on the highway at night his rear light goes out because of the failure of an electric bulb. A has used all reasonable diligence and care in the inspection of his car, and is unaware that the light has gone out. Before he has had any reasonable opportunity to discover it, the absence of the light causes a collision with B's car, approaching from the rear, in which B is injured. A is not liable to B on the basis of the violation of the statute.
Comment on Clause (c):
g. Diligence and care. Most legislative enactments and regulations are construed to require only reasonable diligence and care to comply with them; and if after such diligence and care the actor is unable to comply, his violation will ordinarily be excused.
4. A statute provides that railroad companies shall keep their fences free from snow and ice. A heavy blizzard covers the fences of the A Railroad Company with snow. Although A Company has exercised all reasonable care to provide snow removal equipment, and acts as promptly as possible, it is unable to remove the snow from one of its fences for three days. During the second day B's cow, in an adjoining field, crosses the fence on a mound of snow, and is struck by a train. A is not liable to B on the basis of a violation of the statute.
Comment on Clause (d):
h. Emergency. As in other cases of negligence (see § 296), the violation of an enactment or regulation will ordinarily be excused when the actor is confronted by an emergency which is not caused by his own misconduct.
5. A statute provides that all drivers of vehicles shall keep to the right side of the highway. While A is driving on the right side of a highway with all reasonable care, a child suddenly darts out from the sidewalk into the path of his car. With no time for reflection, A turns to the left side of the highway to avoid hitting the child. As a result his car collides with that of B, who is injured. A is not liable to B on the basis of a violation of the statute.
Comment on Clause (e):
i. Alternative hazard. As in other cases of negligence, the actor may be excused when compliance with the enactment or regulation would involve an equal or greater hazard to the actor himself or to others. (See § 295.)
6. A statute provides that pedestrians walking on a highway shall walk on the left side, facing approaching traffic. At an hour in the evening when there is a steady stream of traffic on the left side of the highway, and only an occasional vehicle on the right side, A walks on the right side of the highway to avoid the greater risk of being struck by a vehicle on the left side. A is not negligent in doing so.
j. Court and jury. It is for the court to determine
in the first instance whether the excuse is one which the law will recognize,
or whether it is necessarily sufficient. In cases where reasonable men
may differ as to the sufficiency of the excuse, it is for the jury to determine
whether the conduct is excused under the particular circumstances, under
proper instructions from the court.
REPORTERS NOTES: This Section has been added to the first Restatement, which mentioned the matter only briefly in Comment c under § 286.
Comment b: The running illustration as to the light's going out is based on Brotherton v. Day & Night Fuel Co., 192 Wash. 362, 73 P.2d 788 (1937). The running illustration as to the impounding statute is based on Schumacher v. City of Caldwell, 146 Tex. 265, 206 S.W.2d 243 (1947). As to the difference between criminal and civil excuses, see Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum. L. Rev. 21, 30-31 (1949); Phoenix Refining Co. v Powell, 251 S.W.2d 892 (Tex. Civ. App. 1952).
Comment c: As to child labor acts, see Beauchamp v. Sturges & Burns Mfg. Co., 250 Ill. 303, 95 N.E. 204 (1911), affirmed, 231 U.S. 320, 34 S. Ct. 60, 58 L. Ed. 245, L.R.A. 1915A, 1196; Blanton v. Kellioka Coal Co., 192 Ky. 220, 232 S.W. 614 (1921); Krutlies v. Bulls Head Coal Co., 249 Pa. 162, 94 A. 459, L.R.A. 1915F, 1082 (1915).
As to the Federal Safety Appliance Act, see O'Donnell v. Elgin, J. & E. R. Co., 338 U.S. 384, 70 S. Ct. 200, 94 L. Ed. 187, 16 A.L.R. 2d 646 (1949), rehearing denied, 338 U.S. 945, 70 S. Ct. 427, 94 L. Ed. 583; Trout v. Pennsylvania R. Co., 300 F.2d 826 (3 Cir. 1962).
Illustration 1 is taken from Doherty v. S. S. Kresge Co., 227 Wis. 661, 278 N.W. 437 (1938). See, in accord: Donaldson v. Great A. & P. Tea Co., 186 Ga. 870, 199 S.E. 213, 128 A.L.R. 456 (1938), answer conformed to, 59 Ga. App. 79, 200 S.E. 498; Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N.W. 428, 131 Am. St. Rep. 441 (1909); Bolitho v. Safeway Stores, 109 Mont. 213, 95 P.2d 443 (1939); Yochem v. Gloria, Inc., 134 Ohio St. 427, 13 Ohio Op. 29, 17 N.E. 2d 731 (1938); Culbertson v. Coca Cola Bottling Co., 157 S.C. 352, 154 S.E. 424 (1930). For pure food acts not so construed, see Gearing v. Berkson, 223 Mass. 257, 111 N.E. 785, L.R.A. 1916D, 1006 (1916); Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N.W. 414 (1934); Howson v. Foster Beef Co., 87 N.H. 200, 177 A. 656 (1935). See Note, 26 Va. L. Rev. 100 (1939).
See also Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450 (1936), rehearing denied, 271 N.Y. 531, 2 N.E.2d 680, 104 A.L.R. 462, safety act for protection of employees; Koenig v. Patrick Const. Corp., 298 N.Y. 313, 83 N.E.2d 133, 10 A.L.R.2d 848 (1948), same; Pankey v. Hiram Walker & Sons, Inc., 167 F. Supp. 609 (S.D. Ill. 1958); Continental Can Co. v Horton, 250 F.2d 637 (8 Cir. 1957), same; Monsour v. Excelsior Tobacco Co., 115 S.W. 2d 219 (Mo. App. 1938), building regulation.
Comment c: See Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987, 5 N.C.C.A. N.S. 710 (1939). As to statutes receiving a construction which in effect eliminates all but a few possible excuses, see Andrew v. White Bus Line Corp. 115 Conn. 464, 161 A. 792, 32 N.C.C.A. 401 (1932); McDowell v. Federal Tea Co., 128 Conn. 437, 23 A.2d 512 (1942).
Comment d: Illustration 2 is based on Alabama Power Co. v. Bowers, 252 Ala. 49, 39 So. 2d 402 (1949); Galbraith v. Thompson, 108 Cal. App. 2d 617, 239 P.2d 468 (1952); Michalsky v. Gaertner, 53 Ohio App. 341, 7 Ohio Op. 140, 19 Ohio L. Abs. 509, 5 N.E.2d 181 (1935); Morby v. Rogers, 122 Utah 540, 252 P.2d 231 (1953); Gough v. Shaner, Adm'r, 197 Va. 572, 90 S.E.2d 171 (1955); Van Saxe v. Barnett, 125 Wash. 639, 217 P. 62 (1923). See Note, 26 So. Cal. L. Rev. 335 (1953). There is a minority view to the contrary. Sagor v. Joseph Burnett Co., 122 Conn. 447, 190 A. 258 (1937); Patrician v. Garvey, 287 Mass. 62, 190 N.E. 9 (1934); D'Ambrosio v. City of Philadelphia, 354 Pa. 403, 47 A.2d 256, 174 A.L.R. 1166 (1946); Simmons v. Holm, 229 Or. 373, 367 P.2d 368 (1961); Daun v Truax, 56 Cal. 2d 647, 16 Cal. Rptr. 351, 365 P.2d 407 (1961); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); Baldwin v. Hosley, 328 S.W.2d 426 (Ky. 1959).
Comment e: Illustration 3 is based on Brotherton v. Day & Night Fuel Co., 192 Wash. 362, 73 P.2d 788 (1937), and Taber v. Smith, 26 S.W.2d 722 (Tex. Civ. App. 1930). See also Berkovitz v. American River Gravel Co., 191 Cal. 195, 215 P. 675 (1923); Bissell v. Seattle Vancouver Motor Freight, 25 Wash. 2d 68, 168 P.2d 390 (1946); Alarid v. Vanier, 50 Cal. 2d 617, 327 P.2d 897 (1958), brakes; Beezley v. Spiva, 313 S.W. 2d 691 (Mo. 1958), same; Hullander v. McIntyre, 78 S.D. 453, 104 N.W.2d 40 (1960), ignorance of intersection; McEachen v. Richmond, 150 Cal. App. 2d 546, 310 P.2d 122 (1957), same. Contra: Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552 (1932); Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92 (1929).
Comment f: Illustration 4 is based on Martin v. Atchison, T. & S. F. R. Co., 92 Kan. 595, 141 P. 599, L.R.A. 1915B, 134 (1914). See also Hammond v. Vestry of St. Pancras, L.R. 9 C.P. 319 (1874); Phillips v. Britannia Hygienic Laundry Co.,  1 K.B. 539, affirmed,  2 K.B. 832 (C.A.); Musgrave v. Southern Pacific Co., 49 Ariz. 512, 68 P.2d 202 (1937); Baldwin v. Washington Motor Coach Co., 196 Wash. 117, 82 P.2d 131 (1938).
Where the violation is due to circumstances over which the actor has no control, the excuse has nearly always been recognized. Giancarlo v. Karabanowski, 124 Conn. 223, 198 A. 752 (1930), steering gear damaged by collision without actor's fault; Herman v. Sladofsky, 301 Mass. 534, 17 N.E.2d 879 (1938), skidding; Dohm v. R. N. Cardozo & Bros., 165 Minn. 193, 206 N.W. 377 (1925), same; Wilson v. Wright, 52 Wash. 2d 805, 329 P.2d 461 (1958), hitting chuck hole; Johnson v. Prideaux, 176 Wis. 375, 187 N.W. 207 (1922), driver enveloped in cloud of dust.
Comment g: Illustration 5 is taken from Burlie v. Stevens, 113 Wash. 182, 193 P. 684 (1920), "even though it constituted a violation of the ordinance." See also Jolly v. Clemens, 28 Cal. App. 2d 55, 82 P.2d 51 (1938); R. & L. Transfer Co. v. State for Use of Schmidt, 160 Md. 222, 153 A. 87 (1931); Chase v. Tingdale Bros., 127 Minn. 401, 149 N.W. 654 (1914).
Comment h: Illustration 6 is taken from Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987, 5 N.C.C.A. N.S. 710 (1939). See also Hopson v. Goolsby, 196 Va. 832, 86 S.E.2d 149 (1955).