Restatement 6.04 - THE ROLE OF EXCUSE

The Restatement of Torts, Second (1965), deals with this problem in a new section 288A. It states that an Excused violation of a legislative enactment is not negligence. While the section expressly says that the list of excusable situations given is not intended to be exclusive, it lists five categories. They are:

(a) the violation is reasonable because of the actor's incapacity;

Under category (a), 'incapacity,' could come cases where the violator was too young, or did not have the mental capacity, to be charged with negligence. It might include a blind man who unknowingly walks a red light (though he may be contributorily negligent for other reasons), or a driver who is rendered physically incapable because of a heart attack.

'(b) he neither knows nor should know of the occasion for compliance;

Under category (b) could come cases where a night driver has a tail light to go out unexpectedly and without his knowledge.

'(c) he is unable after reasonable diligence or care to comply;

Under category (c), 'unable after reasonable diligence or care to comply,' could come cases involving impossibility, as in Christy v. Blades.

'(d) he is confronted by an emergency not due to his own misconduct;

Under category (d), 'emergency not due to his own misconduct,' could come cases in which there is an unexpected failure in the steering or braking system; a blowout of a tire which is reasonably thought to be in good condition; a sudden confrontation with blinding dust or smoke on the highway. It could include driving on the left side of the highway to avoid striking a darting child, and similar situations.

'(e) compliance would involve a greater risk of harm to the actor or to others.'

Finally, the illustration given by the Restatement for category (e), 'greater risk of harm,' is one in which the law requires people to walk facing traffic, but due to particular circumstances, it would involve greater risk to walk upon that side.