(concurring) — I concur in the rationale and result of the majority but I am convinced that in the appropriate case this court should reexamine the entire theory of negligence per se arising from the alleged violation of a statute, an ordinance or an administrative regulation.
This court has long been committed to the rule that violation of a positive statute constitutes negligence per se. In Engelker v. Seattle Elec. Co., 50 Wash. 196, 96 P. 1039 (1908), the court noted that some jurisdictions follow the rule that a violation of a statute is mere evidence of negligence but it adopted the doctrine "that a thing which is done in violation of positive law is in itself negligence." Engelker, at 199. This rule has been applied to violations of statutes, ordinances and regulations, Cook v. Seidenverg, 36 Wn.2d 256, 217 P.2d 799 (1950); Davis v. Niagara Mach. Co., 90 Wn.2d 342, 581 P.2d 1344 (1978), in determining both the liability of defendants and the contributory negligence of plaintiffs. Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983). The Restatement (Second) of Torts § 286 (1965) adopted the test of the relevancy of the statute to the tortious action. Where the relevancy test is met and where there exists prima facie a discernible causal connection between the violation of the statute and the injury, the jury is properly advised that the violation amounts to negligence per se and proximate cause then *250becomes the sole issue of fact to be resolved by the trier of fact. Kness v. Truck Trailer Equip. Co., 81 Wn.2d 251, 501 P.2d 285 (1972).
The rule, however, has not been applied with relentless indifference to actual fault. A violation of statute has been held not to constitute negligence per se where the violation is due to some cause beyond the violator's control, and which reasonable prudence could not have guarded against, Brotherton v. Day & Night Fuel Co., 192 Wash. 362, 73 P.2d 788 (1937); where the violation is due to an emergency, Burlie v. Stephens, 113 Wash. 182, 193 P. 684 (1920); where the violation is merely technical, Baldwin v. Washington Motor Coach Co., 196 Wash. 117, 82 P.2d 131 (1938); where the violation is perpetuated out of necessity, Discargar v. Seattle, 25 Wn.2d 306, 171 P.2d 205 (1946); or where the violator is not given notice that his actions were in violation of the law, Wood v. Chicago, M., St. P. & Pac. R.R., 45 Wn.2d 601, 277 P.2d 345, 283 P.2d 688 (1954).
As the Wood court stated, "[a]n analysis of the above cases indicates a reluctance by this court to impose liability by finding negligence per se; that is, negligence as a matter of law, where no negligence exists in fact." Wood, at 610. The court went on to state that such decisions were intended to place the negligence per se doctrine within "rational judicial control." This 77-year-old doctrine has been the subject of exceptions almost since its adoption. Perhaps it is time we stopped selectively placing the negligence question within "rational judicial control" and place it, in all cases, in the rational control of the trier of fact, where it belongs.
The finding of negligence is normally a task for the trier of fact. Through the application of the negligence per se doctrine we have taken that task away from the jury and the court now decides when a violation of statute constitutes negligence. It is evident from the numerous exceptions to the doctrine that the court is not merely applying a statute to the tortious action, but determining from the total factual circumstances whether or not the statute vio*251lator was negligent at all. I, therefore, advocate true rational control of the negligence doctrine through the return of the negligence question to the trier of fact in cases involving evidence of a violation of statute.
Currently, the majority of American jurisdictions follow the negligence per se doctrine and find that a breach of statutory duty is a breach of standard of care for civil negligence cases. Seven states follow the theory that a breach of a statutory duty is evidence of negligence in civil action,2 while five states hold that a violation of a statute is prima facie negligence which may be rebutted by competent evidence.3 In addition, some of the courts which follow the majority rule as to statutes have held that the breach of ordinances, or traffic laws, or the regulations of administrative bodies is only evidence for the jury. Such cases seem to indicate a desire to leave some leeway for cases where a violation may not be necessarily unreasonable. 2 F. Harper & F. James, Torts § 17.6 (1956).
The English rule is to consider a breach of a statutory duty a tort in itself. The Canadian Supreme Court recently reviewed both the English rule and the American rules and chose to follow the American minority rule which considers the violation to be mere evidence of negligence. The Queen v. Saskatchewan Wheat Pool, 143 D.L.R.3d 9 (1983); see also Note, Negligence and Breach of Statutory Duty, 4 Oxford J. Legal Stud. 429 (1984).
As indicated by the Canadian decision, criticism of the *252negligence per se doctrine is mounting in the courts. Authors of treatises and journal articles are also increasingly critical of the doctrine and write favorably of the evidence-of-negligence doctrine. Objection is made to the court's inferring a legislative intent to create a standard of care in civil cases where the Legislature is silent. The main criticism is that it is difficult to discover the bases on which the courts either find or refuse to find these fictional intentions. Alexander, Legislation and the Standard of Care in Negligence, 42 Can. B. Rev. 243 (1964). The most widely accepted rationale for the negligence per se rule is that the reasonable man always obeys the criminal law, thus, a breach of the criminal law must be unreasonable and, therefore, negligent. Thayer, Public Wrong and Private Action, 27 Harv. L. Rev. 317 (1913-1914). The basic flaw in this rationale and in inferring legislative intent is the fact that the criminal proscriptions may be ill conceived, hastily drawn with inadequate investigation or obsolete and, yet, the validity of the statute will not be before the court in the negligence action. The Legislature has not considered the policy problems peculiar to civil liability nor has it composed the legislation in terms of a standard of due care in damage suits or for judging negligence. Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum. L. Rev. 21, 39-43 (1949). Reliance on the Legislature for a standard of reasonableness under these circumstances would not make for the wisest decision.
A second rationale for finding legislative intent to create a standard of care in civil cases is that the Legislature recognizes that the negligence per se rule is needed to promote and fulfill reliance by others on uniform obedience to statutes. However, where the Legislature does not explicitly impose automatic liability in a civil action as a sanction, the court is encroaching on legislative territory when it adds such a sanction for the purposes of law enforcement. Further, "[n] either in fact nor in law do others have the right under all circumstances to rely on the actor's obedience to statute." F. Harper & F. James, supra at 1000.
*253Further criticism of the negligence per se doctrine arises because of the differences between the criminal and civil systems. Lawmakers may be contented with a broad unqualified requirement in a criminal statute because they knew that enforcement officials would use their discretion to make exceptions in cases where literal compliance made no sense or worked a hardship. In a civil action on the other hand, where large damages are often at stake, the injured party cannot be expected to jeopardize his claim by forgiving noncompliance in exceptional cases, as a public prosecutor would. F. Harper & F. James, supra at 998. Additionally, civil defendants do not have the ability to avail themselves of criminal procedural defenses and protections against an inflexible application of the criminal standard.
Criticism is also made because of the imposition of liability without fault. As noted above, the Washington courts have joined in this criticism and produced multiple exceptions in order to avoid this aspect of the doctrine. This exception-finding approach produces a weakened doctrine and ultimately places the jury's task of determining negligence with the court under all circumstances. Such an approach also leads to distorted statutory construction which affects the criminal law as well.
The defect in our prior reasoning is that the negligence per se doctrine removes the determination of negligence from the fact-finding function of the jury, or the court sitting as a fact finder. While it is a convenient method to affix liability, it runs counter to the basic notion of determining tort liability. I would prospectively limit the doctrine to an evidence of negligence standard.
Goodloe, J., and James, J. Pro Tern., concur with Brachtenbach, J.Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91, cert. denied, 434 U.S. 835 (1977); Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036, 442 N.E.2d 743 (1982), review denied, 445 N.E.2d 156 (1983); Fisher v. O'Connor's, Inc., 53 Md. App. 338, 452 A.2d 1313 (1982); Floridia v. Farlee, 201 Neb. 39, 266 N.W.2d 204 (1978); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 346 A.2d 76 (1975); Burns v. Bombard, 128 Vt. 178, 260 A.2d 219 (1969); Distad v. Cubin, 633 P.2d 167 (Wyo. 1981).
Stephens v. State, 440 So. 2d 920 (La. Ct. App. 1983), cert. denied, 443 So. 2d 1119 (1984); Agnello v. Puzzo, 110 Ill. App. 3d 913, 443 N.E.2d 648 (1982); Dongo v. Banks, 448 A.2d 885 (Me. 1982); Hall v. Warren, 632 P.2d 848 (Utah 1981); Vandergrift v. Johnson, 157 W. Va. 958, 206 S.E.2d 515 (1974).