(concurring).
I concur with the treatment of the issues herein, but I wish to express the view that the time has come for this court to re-examine the doctrine of negligence per se for violation of a statute or regulation as adopted in Ferrell v. Baxter,1 Breitkreutz v. Baker 2 and subsequent cases.3
Justice Rabinowitz in his dissent to Ferrell4 noted that the concept that violation of a statute, ordinance or a regulation was evidence of negligence was easier to grasp by jurors and presented fewer difficulties from the vantage point of judicial administration. I agree, for the cases consistently demonstrate that conceptual problems arise when a violation of statute has been found in the first instance, while a finding of excuse by the jury results in the ultimate determination that there was no violation of the statute. This problem is avoided where the trier of fact, upon finding a violation of statute, decides that the violation is excusable.5
The judge or jury under the adopted Restatement rule6 is asked initially to find a violation of statute or ordinance and then to consider the categories of excuse. If the jury then finds excuse,7 the violation is not negligence.8
More importantly, however, Justice Ra-binowitz noted that such a doctrine emphasized the traditional role of the jury in determining the standard of reasonable care.
It is becoming extremely difficult to undertake any business endeavor without violating some regulation, and this case demonstrates the problems with the negligence per se standard in an era where safety regulations of three levels of government (federal, state and local) are proliferating at an incredible rate.
The focus of determining the standard of reasonable care shifts from the jury to the judge who must rule whether or not a statute or regulation has been violated and thus the party is guilty of negligence per se. The proper label removes the issue from jury consideration.
In view of the adoption of the doctrine of comparative negligence, I would overrule Ferrell, Breitkreutz and their progeny following the negligence per se standard and announce, at the very least, that in future cases we would follow the “evidence of negligence” path.
. 484 P.2d 250 (Alaska 1971).
. 514 P.2d 17 (Alaska 1973).
. McLinn v. Kodiak Electric Association, Inc., 546 P.2d 1305 (Alaska 1976); Clabaugh v. Bottcher, 545 P.2d 172 (Alaska 1976).
. 484 P.2d 250, 271 (Alaska 1971).
. See Breitkreutz v. Baker, 514 P.2d 17, 24-25 (Alaska 1973).
. See Restatement (Second) of Torts § 288A (1965).
. Id. at Section 2.
. Id. at Section 1.