dissenting.
Plaintiff contends that the trial court erroneously instructed the jury that the reasonableness of defendant’s conduct could excuse his violation of ORS 811.585(1),1 which prohibits failure to secure a motor vehicle that is permitted to stand unattended on a highway. Despite its assumption that defendant violated the statute in at least one respect, the lead opinion holds that the jury was properly instructed that it could consider the reasonableness of defendant’s conduct in deciding whether he was negligent. Because I believe that the lead opinion’s holding significantly erodes the doctrine of negligence per se under Oregon law, I respectfully dissent.
Plaintiffs complaint alleged that defendant was negligent in various respects in parking and leaving the vehicle unattended. The trial court instructed the jury that:
“[Negligence per se] consists of the violation of a statute that for the safety or protection of others requires certain conduct or forbids certain conduct.
“When I call your attention to any such statute, a violation of that statute by a party constitutes negligence in and of itself unless you find from all the evidence that such party proved that he was acting as a reasonably prudent person under the circumstances.”
According to plaintiff, the evidence did not support giving the portion of the instruction that pernitteJ the jury to determine if defendant was acting as a reasonably prudent person under the circumstances. Defendant disagrees. The parties each rely on Barnum v. Williams, 264 Or 71, 504 P2d 122 *62(1972), in support of their respective positions. In Barnum, the court considered the present state of the law to be
“that the violation of a motor vehicle statute creates a presumption of negligence. When the evidence establishes that a party has violated a motor vehicle statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. * * *
“If the party having such burden produces no evidence of reasonable conduct or the court finds the evidence produced is insufficient to prove reasonable conduct, the court must find the party negligent as a matter of law. If the party produces evidence which the court determines raises a question of fact whether the party acted reasonably, despite violation of the statute, then, the question of the party’s negligence is for the jury.” Id. at 79.
The lead opinion acknowledges, at least for purposes of argument, that the evidence established without contradiction that defendant violated the statute by failing to set the parking brake when he parked his vehicle. However, it accepts defendant’s premise that his explanation for his failure to comply with the statute was sufficient to permit the jury to consider its reasonableness. Defendant argues that, assuming the parking brake was not set, the violation is explained by the fact that the parking lot was nearly flat and the vehicle was put into first gear to prevent it from rolling. Plaintiff contends, on the other hand, that the question of whether a defendant’s unlawful conduct nonetheless was reasonably prudent should be decided by a jury only if the defendant’s evidence provides a legitimate excuse for not complying with the statute. According to plaintiff, the evidence in this case did not establish such an excuse. Plaintiff is correct.
Most nearly on point is our decision in Cervantes v. Mattson, 90 Or App 574, 752 P2d 1293 (1988). In Cervantes, the defendant attempted to pass the plaintiffs vehicle on the left at a T-intersection. The plaintiff turned at the intersection, and the vehicles collided. The plaintiff alleged negligence per se, based on the defendant’s violation of the statute prohibiting passing at an intersection. The defendant did not *63dispute that he had violated the statute. Instead, he produced evidence that the plaintiff did not signal before turning, that the road was clear, dry, and straight, that there was no oncoming traffic, and that the intersecting road was a minor residential road connecting to a major highway. We held that the defendant had not presented sufficient evidence to show that his conduct was reasonable.
“[W]e cannot agree * * * that a person who has violated a traffic safety statute can rebut the presumption of negligence by evidence which shows nothing more than that he ‘reasonably’ thought that no harm would result from his uncompelled, deliberate violation of the statute.
“* * * [Decisions subsequent to Barnum have explained that the ‘presumption of negligence becomes conclusive, absent any “adequate explanation” for the violation of the statute.’ Defendant offered no adequate explanation for violating the statute. His explanation, instead, was that his violation occurred under circumstances which made injury less likely [than] if he had committed the same violation under different circumstances. He failed to rebut the presumption of negligence, and the trial court erred by denying plaintiffs motion for a directed verdict on liability.” Cervantes, 90 Or App at 577-78 (citation omitted; first emphasis in original, second emphasis added).
An excuse for a statutory violation that warrants jury consideration of the reasonableness of the defendant’s conduct must show, if believed, that the violation occurred without the defendant’s fault. In Gray v. Lahl, 284 Or 111, 585 P2d 664 (1978), the defendant admitted at trial that an injury-producing accident occurred because, in violation of former ORS 483.444, repealed by Or Laws 1983, ch 338, § 978, his truck’s brakes were defective. In light of the undisputed statutory violation, the court held that, in order to create a jury issue, “defendant must show a ‘legitimate excuse’ for [the] statutory violation, as by testimony that the failure of the brakes was sudden, unexpected and without previous warning.” Id. at 117. Because the defendant offered no such evidence, the court held that the trial court erred in denying the plaintiffs motion for a directed verdict on the issue of liability. Id. at 117-18.
*64By contrast, in the following cases, the court held that excuses showing that the defendant failed to comply with a statute through no fault of his or her own were legitimate and, thus, were sufficient for jury consideration. See Weitzel v. Wingard, 274 Or 185, 190, 546 P2d 121 (1976) (holding that the defendant’s excuse that he was on the wrong side of the road because of the defective condition of his vehicle was sufficient for jury consideration; the evidence permitted the jury to find that the defendant was not at fault for the defective condition); Freund v. DeBuse, 264 Or 447, 451, 506 P2d 491 (1973) (holding that evidence that the defendant had attempted to maintain brakes was sufficient to allow jury to consider reasonableness of violation of statute requiring defendant to maintain brakes); Mariman v. Hultberg, 82 Or App 535, 539, 728 P2d 919 (1986) (holding that the defendant’s evidence that snow on road thwarted his attempt to avoid crossing center line was sufficient to allow jury to determine whether conduct in violation of statute requiring driver to remain on right-hand side of road was reasonable).
The foregoing decisions point to a single conclusion in this case: because defendant offered no evidence that his failure to set the parking brake occurred through no fault of his own, his excuse was not legitimate, and the trial court should not have given the challenged portion of the jury instruction on statutory negligence. In reaching a different conclusion, the lead opinion relies heaviiy on Torres v. Pacific Power and Light, 84 Cr App 412, 734 P2d 364 (1987). In Torres, the defendant’s employee was required by former OAR 437-84-0292 to maintain constant watch c ver the plaintiff during installation of a chain-link fence in and around an electrical substation. While lifting a metal rod, the plaintiff touched the rod to an energized bus bar and was seriously injured by electric shock. The safety watcher did not observe the accident because he had turned away less than a minute earlier. The safety watcher testified that he looked away from the plaintiff because his attention “was drawn to something” that distracted him, although he could not recall with confidence what the distraction was.
*65“A. Any number of things could have drawn my attention because I was responsible for the plant. I was responsible for three men on the deck. It was my idea to know where all three were. I could see two. The change in the hum of the transformer would have drawn my attention. A bug in the generator would have drawn my attention. If someone were to drop a wrench on the deck it would have drawn my attention.
“Q. Did any of those things occur to the best of your recollection?
“A. I would say the best thing that could have caught my attention would be a bump in the generator if we were running rough.
“Q. But you can’t really recall today?
“A. I cannot.” Torres, 84 Or App at 417.
The plaintiff moved for a directed verdict based on the safety watcher’s admitted violation of former OAR 437-84-029. The trial court denied the motion. The court gave the jury an instruction modeled on Uniform Civil Jury Instruction (UCJI) 20.05, and the jury returned a verdict for the defendant. On appeal, the plaintiff argued that the defendant submitted no evidence explaining why the safety watcher violated former OAR 437-84-029 from which the jury could have found that the violation was reasonable. We disagreed and affirmed. Although the testimony that “something” drew the safety watcher’s attention may have been only minimally sufficient, cf. id. at 418 (Itossman, J., dissenting), Hie safety watcher’s testimony did address the reason why he violated former OAR 437-84-029. We held that he provided a legitimate excuse for his violation of the rule. Whether the excuse was reasonable was left for the jury to decide.
By contrast, in this case, defendant offered no evidence suggesting that he was distracted or otherwise failed for some reason to comply with the statute through no fault of his own. Instead, he argues that his own safety measures provided an adequate substitute for statutory compliance. Torres does not speak to that issue at all and, for that reason, is distinguishable from the circumstances here. Having said that, I do not pretend that the result in Torres is easily harmonized with the other cases cited above. In upholding jury *66consideration of a minimally explained distraction as a possible excuse for violation of a safety rule, we arguably permitted the jury in Torres to speculate about the reasonableness of the defendant’s conduct, something we had not done before nor have we done since. If factual differences were not sufficient to reconcile the cases, I would repudiate Torres, because it represents our most extreme application to date of the “legitimate excuse” exception to the doctrine of negligence per se.
In any case, Cervantes cannot be distinguished from this case in the way the lead opinion attempts to do. According to the lead opinion, Torres controls here because, unlike in Cervantes, the evidence showed that defendant’s violation of the statute was the product of neglect rather than of conscious deliberation and because he took the “substitute” precaution of placing the transmission in gear. I respectfully disagree. The negligence per se doctrine has never been rationalized by a distinction between deliberate and unknowing statutory violations. Barnum stands for the principle that, despite Oregon’s adherence to the doctrine of negligence per se, “fault is the basis of liability in tort.” 264 Or at 74. The fact that a defendant has inadvertently, rather than deliberately, violated a statute, does not mean that he or she was not at fault in doing so. Nor did this court’s description of the defendant’s conduct in Cervantes as “uncompelled” and “deliberate” lower the bar for submission of an excuse for a statutory violation to a jury. Unless a vehicle operator violates a statute through no fault of his or her own, the violation is inevitably uncompelled and is, in the view of the law, deliberate. That is so, because all motor vehicle operators are presumed to know the rules rf the road, whether they in fact are familiar with them or not. Dungey v. Fairview Farms, Inc., 205 Or 615, 621, 290 P2d 181 (1955). Thus, an operator who deliberately disregards a vehicle safety law is no more or less negligent for having violated the law than is a person who does so while unconscious of the law’s existence.3 Nor is the excuse of the latter entitled to greater consideration.
*67Furthermore, it is not up to the operator of a vehicle to decide not to comply with the law merely because he or she believes that there is another way to behave safely in the circumstances. An excuse that boils down to “I did not think any harm would come of the violation” is insufficient to create a jury question as a matter of law. See Cervantes, 90 Or App at 577. The lead opinion’s view is, in the end, fundamentally the same as the argument rejected in Cervantes, namely, that defendant was entitled under the circumstances reasonably to believe that no harm would come from his failure to set the parking brake. Id. It follows the view of the late Justice O’Connell, who always believed that “the violation of traffic laws should be regarded only as evidence of negligence to be weighed by the jury.” Henthorne v. Hopwood et al, 218 Or 336, 341, 338 P2d 373 (1959) (O’Connell, J., specially concurring); see also Weitzel, 274 Or at 193-94 (O’Connell, J., specially concurring). Whatever the merits of that view may be, it does not reflect the path taken in Oregon.4 Motor vehicle operators are not permitted to decide for themselves, either deliberately or unconsciously, whether or not compliance with a statute provides the most reasonable means for assuring safety on the road. A legitimate excuse—one that creates a jury issue—requires a showing that the party who violated the statute did so through no fault of his or her own. Because defendant did not offer such an excuse, the trial court erred in instructing the jury that it could find that he was acting as a reasonably prudent person with respect to the specification of negligence relating to his failure to set the parking brake.
The remaining question is whether that error requires reversal. In reviewing jury instructions, we will reverse only if we can fairly say that the instruction probably created an erroneous impression of the law in the minds of the jury that affected the outcome of the case. Bray v. American Property Management Corp., 164 Or App 134, 142, 988 P2d 933 (1999). Plaintiff contends that under the “we can’t tell” rule of Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990), we must reverse and remand. Plaintiff is correct.
*68In Eslamizar v. American States Ins. Co., 134 Or App 138, 894 P2d 1195 (1995), the trial court submitted to the jury two affirmative defenses, only one of which was supported by the evidence. The jury returned a general verdict in favor of the defendant. We reversed and remanded because we could not tell whether the jury predicated its decision on a legally permissible basis. Id. at 147. Here, the jury couldhave found that defendant did not violate the statute because, as we have already held, the trial court did not err in denying plaintiffs motion for a directed verdict based on ORS 811.585(1). However, the trial court erroneously instructed the jury that, if it found that defendant had violated the statute, it could consider whether defendant acted as a reasonably prudent person under the circumstances. Because the jury returned a general verdict finding that defendant was not negligent, we cannot tell whether the jury permissibly decided that defendant did not violate the statute or imper-missibly found that, if defendant violated the statute, his conduct was nonetheless reasonable. Therefore, we should reverse and remand.
I respectfully dissent.
ORS 811.585(1) provides, in part:
“A person commits the offense of failure to secure a motor vehicle if the person is driving or is in charge of a motor vehicle and:
“(a) The person permits the vehicle to stand unattended on a highway witnout first doing all of the following:
“(A) Stopping the engine.
“(B) Turning the front wheels to the curb or side of the highway when standing upon any grade.
“(C) Locking the ignition.
“(D) Removing the key from the ignition.
“(E) Effectively setting the brake on the vehicle!.]”
Former OAR 437-84-029 was renumbered in 1989 as OAR 437-003-0145.
Of course, the deliberate nature of the violation may actually increase the actor’s culpability to the level of reckless or intentional misconduct.
Justice O’Connell lucidly explained what he believed were the logical and practical fallacies of the negligence per se doctrine in his dissent in McConnell v. Herron, 240 Or 486, 494-503, 402 P2d 726 (1965).