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Texas Negligence Per Se

©2014 Mark Courtois and Diane Davis

Negligence per se is a tort concept or doctrine recognized in Texas whereby the civil courts adopt a legislatively imposed standard of conduct as defining the conduct of a reasonably prudent person. Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978); Cerda v. RJL Entertainment, Inc. d/b/a Club Cheetah, 2013 Tex. App. LEXIS 14933, *8-9 (Tex.App. - Corpus Christi 2013, pet. denied). Many times a violation of a criminal statute is the basis for the negligence per se claim. All persons have a duty to obey the criminal law in the sense that they may be prosecuted for not doing so, but this is not equivalent to a duty in tort. Perry v. S.N., 973 S.W.2d 301, 304 (Tex. 1998). The threshold questions in negligence per se cases are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent. Id. at 305. Moreover, the courts will not apply the doctrine of negligence per se if the criminal statute does not provide an appropriate basis for civil liability. Id. at 304.

Additional Factors for Courts to Consider in Application of Negligence Per Se

However, even if these threshold questions can be answered affirmatively, the Texas Supreme Court set forth the following factors for courts to consider in deciding whether to apply a specific statutory requirement to a particular claim:   

  • Whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common law duty;
  • whether the statute puts the public on notice by clearly defining the required conduct;
  • whether the statute would impose liability without fault;
  • whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and
  • whether the plaintiff's injury is a direct or indirect result of the violation of the statute. Id. at 309.