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Texas Negligence

© 2014 Mark Courtois

Negligence is by far the most common cause of action pled in lawsuits in Texas, as it has the best chance of invoking a Defendant's liability insurance. Negligence is defined as the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. See 20801, Inc. v. Parker, 249 S.W.3d 392, 398 (Tex. 2008); Thompson v. Gibson, 298 S.W.2d 97, 105 (Tex. 1957); see also State Bar of Texas, Texas Pattern Jury Charges PJC 2.1 (2012). To establish liability based on negligence, a plaintiff must prove the defendant did something an ordinarily prudent person exercising ordinary care would not have done under the same circumstances, or, that the defendant failed to do that which an ordinarily prudent person in the exercise of ordinary care would have done. Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 28 (Tex. App.--Houston [1st Dist.] 1997, no pet.) "Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. See State Bar of Texas, Texas Pattern Jury Charges PJC 2.1 (2012).

Elements

Elements of a Negligence cause of action are:

1) Duty owed by defendant to plaintiff;
2) Breach of that duty;
3) Proximate cause of the plaintiff's damages by defendant's breach; and
4) Damages.

Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013).

DUTY

Duty is defined as the obligation to conform to a particular standard of conduct toward another, and is the threshold inquiry in a negligence cause of action. C.J. Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 948 (Tex. App.--Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex. 1995). When no duty exists, no legal liability can arise because of negligence. C.J. Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d at 948. As the Supreme Court has stated, "It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability." Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993).

Duty is a question of law for the court to decide from facts surrounding the occurrence in question. Greater Houston Transp. Co.v Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In determining whether a duty exists, a court is to consider several interrelated factors such as: 1) The risk involved; 2) The foreseeability of the risk; 3) Likelihood of injury; and 4) Factors 1-3 weighed against the social utility of the actor's conduct and the magnitude of the burden on the defendant. Id. Of all the factors considered foreseeability of the risk is the foremost and dominant consideration. Id. (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)).

BREACH

Breach of duty looks at whether the party violated or breached, the applicable standard of care. As discussed, the standard of care is usually to act as a reasonably prudent person would act under the same or similar circumstances.

In some cases a standard other than an ordinarily prudent person is applicable. Professional negligence, for example, in the context of engineering services means doing that which an engineer of ordinary prudence in the exercise of ordinary care would not have done under the same or similar circumstances or failing to do that which an engineer of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and the standard must be established by the testimony of a qualified expert. Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.--Houston [1st Dist.] 1993, no writ), aff'd as modified, 901 S.W.2d 434 (Tex. 1995). An attorney in Texas is held to the standard of care that would be exercised by a reasonably prudent attorney, and the standard is an objective exercise of professional judgment. Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989).

In some rare cases, a high degree of care is the standard by which the defendant's conduct is measured. These cases usually involve the duty of a common carrier to its passengers such as airlines, taxes and handlers of dangerous commodities. See Delta Airlines v. Gibson, 550 S.W.2d 310, 312 (Tex. Civ. App.--El Paso 1977, writ ref'd n.r.e.) (standard of care applied to airline regarding use of escalator in boarding and unloading of passenger); see also Skyline Cab Co. v. Bradley, 325 S.W.2d 176 (Tex. Civ. App.--Houston 1959, writ ref'd n.r.e.) (standard of care applied to taxi cabs); Robert R. Walker, Inc. v. Burgdorf, 244 S.W.2d 506 (Tex. 1951) (handlers of dangerous commodities have duty to protect public that is commensurate with the dangers involved). In a case involving a standard of high degree of care, high degree of care is defined as that degree of care that would have been used by very cautious, competent, and prudent person under the same or similar circumstances. See State Bar of Texas, Texas Pattern Jury Charges PJC 2.02 (2013).

In a case involving a child, the conduct of the child is to be judged by the standard of a child and not that of an adult. See Dallas Ry. & Terminal v. Rogers, 218 S.W.2d 456, 458 (Tex. 1949); see also Thompson v. Wooten, 650 S.W.2d 499 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). Ordinary care in a case involving the conduct of a child is defined as that degree of care which an ordinary prudent child of the same age, experience, intelligence, and capacity would have used under the same or similar circumstances. See State Bar of Texas, Texas Pattern Jury Charges PJC 2.03 (2013). Texas courts have indicated that children below the age of five are too young to be capable of negligence. Yarborough v. Berner, 467 S.W.2d 188 (Tex. 1971). The appropriate age when a child is considered to be of such maturity that the conduct is compared to that of a ordinarily prudent adult, is fourteen. City of Austin v. Hoffman, 379 S.W.2d 103, 107 (Tex. Civ. App.--Austin 1964, no writ).

PROXIMATE CAUSE

Proximate Cause is made up of two elements: cause in fact, and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Proximate cause cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). The test for cause in fact is: whether the negligent "act or omission was a substantial factor in bringing about the injury," without which the harm would not have occurred. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). Cause in fact is not shown if the Defendant's negligence did no more than furnish a condition which made the injury possible. Id. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Id. at 478. A danger of injury is foreseeable if its "general character might reasonably have been anticipated." Id.