Negligence Per Se in Texas: How It Can Impact Your Personal Injury Case

Reviewed by Louis Patino, JD, DC

Louis Patino, JD, DC
A former U.S. Army Combat Medic, Dr. Louis Patino is a distinguished attorney recognised by Top Attorneys of America, Expertise, and the American Institute of Trial Lawyers. He has a Doctor of Jurisprudence from Texas Southern University and a Doctor of Chiropractic from Parker College of Chiropractic.

negligence per se

Personal injury claims are complex. To successfully claim compensation, you must prove the defendant — which might be a person or organization — was negligent.

It’s not enough to argue someone else is responsible for the accident that caused your injuries — you must meet specific criteria and prove multiple elements to recover compensation. You usually won’t have a claim if you cannot prove all elements.

However, there is an exception. Negligence per se is a legal doctrine that may apply to your accident. If it does, you can effectively “skip” several elements, making negligence easier to establish.

In this blog post, our McAllen and San Antonio personal injury lawyer Dr. Louis Patino explains the rule of negligence and when negligence per se might apply in Texas accidents.

Explore the role of negligence in your personal injury claim and what you need to prove to successfully recover compensation. Our Texas personal injury lawyer will explain your options and guide you through the entire process. Click to book a free case review.

What Is Negligence in a Personal Injury Claim?

Before defining negligence per se, we must first understand how the law defines negligence and the burden of proof a plaintiff (the person bringing a claim — which will likely be you) must meet.

The Legal Information Institute (LII) defines negligence as:

“A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act.”

In other words, negligence is carelessness that a prudent person would not exercise.

A person can be negligent by engaging in a specific act or through inaction.

For example, most people would agree that it’s careless to tailgate a driver on the road. If you’re injured in a car accident because a driver followed you too closely and didn’t react in time, you can argue they were negligent.

Most people would also agree that it’s careless for a restaurant to delay cleaning up a spilled drink on the floor — such as if the restaurant is busy. But if a patron slips on the floor and injures their back, they can claim the restaurant was negligent. In this example, the restaurant hasn’t done anything. It’s this failure to act reasonably — such as by cleaning up the spillage, cordoning off the area, or notifying customers of the hazard with a wet floor sign — that establishes negligence.

You can also prove negligence if the party that caused your accident was reckless. Recklessness is more severe than negligence and refers to dangerous behavior or the willful disregard for others’ safety.

Take excessing speeding. A prudent person knows that speeding down a residential road at 100 miles per hour is dangerous — they could reasonably foresee that it could result in an accident and harm pedestrians or other property. If the defendant does it anyway, they go beyond simple negligence — their act is more egregious and crosses the line into recklessness.

Recklessness is commonly called “gross negligence.”

Proving Negligence

You must prove the following elements to claim compensation in Texas:

  • Duty of care: The defendant was legally obligated to act in a way that would avoid causing you harm.
  • Breach of duty: The defendant breached their duty of care through action or inaction.
  • Causation: The defendant’s breach of duty caused your injuries. There are two elements of causation in Texas — cause in fact and proximate cause.
  • Cause in fact (or actual cause): The defendant’s behavior directly caused your injuries, and you would not have sustained your injuries were it not for their breach of duty.
  • Proximate cause: The defendant could have foreseen their actions could cause your injuries.
  • Damages: The defendant’s behavior caused you to suffer losses — or damages. Damages can relate to your harm — like pain and suffering from your injuries — or be financial, such as medical bills and lost wages.

Understanding Negligence Per Se

So where does negligence per se fit into this?

Negligence per se asserts that a defendant is negligent if they have violated a statute or regulation enacted to protect a class — to which the plaintiff belongs — from harm.

Effectively, it establishes a presumption of negligence, allowing you to skip the first two elements of proof.

Examples of Negligence Per Se

Negligence per se is illustrated best with an example.

If a person heads out for a night of heavy drinking and then gets into their car and crashes into you on the way back home, causing you to hit your head and sustain a traumatic brain injury (TBI), negligence per se may apply.

In this example, the driver violated a law by driving while intoxicated (DWI). Alcohol impairs judgment and concentration, reduces coordination, blurs vision, and slows reaction time.

Any of these impairments can increase the likelihood of a crash by:

  • Causing a driver to underestimate risks
  • Causing a driver to make poor choices
  • Affecting a driver’s ability to control their vehicle
  • Preventing a driver from avoiding hazards
  • Making it hard for drivers to judge distance and others on the road.

Therefore, the law prohibits driving while intoxicated to protect the public from accidents and the harm they can cause.

Other examples of negligence per se include:

  • Speeding
  • Building code violations
  • Running a red light
  • Driving on the wrong side of the road
  • Failing to yield the right of way
  • Racing on state highways
  • Allowing an unlicensed employee to drive a vehicle
  • Administering the wrong medication to a patient
  • Performing an incorrect surgical procedure
  • Performing the correct surgical procedure on the wrong body part
  • Failing to obtain consent for a surgical procedure
  • Leaving a sponge or surgical instrument inside a patient’s body during surgery.

In any of these scenarios, you would not need to show the defendant owed you a duty of care and breached that duty. However, you would need to prove the remaining elements.

Therefore, the burden of proof would look like this:

  • The defendant violated a statute designed to protect a class of people.
  • You belong to the class the statute protects.
  • The violation caused your injury (causation).
  • The act caused you to suffer harm that the law intends to prevent (damages).

Who Decides If a Defendant Is Negligent Per Se?

In a typical personal injury lawsuit, a jury will determine whether or not the defendant’s actions fell below the level of care that a reasonable, prudent person would have exercised in the same situation — in other words, whether the defendant was negligent.

But we know that negligence is inferred when a defendant breaks a law that ensures the safety of others.

In a negligence per se case, then, the jury can automatically assume the defendant’s behavior is unreasonable, owing to the violation.

However, the jury will determine whether the defendant violated the law and that their conduct caused your injuries.

The judge presiding over the case will rule on the other elements of negligence per se — that you belong to the class the law protects (e.g. the public), and the statute is designed to protect against the harm you suffered — as a matter of law.

To illustrate this with an example, let’s return to our drunk driving scenario.

The law against drunk driving protects the public. The judge will determine if you belong to that class.

You sustained a head injury in your accident. The judge will determine if the drunk driving law intends to prevent physical injury.

You argue the defendant was drunk driving. The jury will determine if they were under the influence during the crash — and, therefore, breaking the law.

You argue the defendant’s intoxication caused them to crash into you, which led to you hitting your head. The jury will determine if the accident (caused by the defendant’s drunkenness) resulted in your head injury.

How Negligence Per Se Affects the Burden of Proof

In a typical personal injury claim, the burden of proof is on the plaintiff (you) to demonstrate the defendant owed you a duty of care, breached their duty, and caused the accident that resulted in your injuries.

When negligence per se applies, the burden still lies with you — only you must prove the defendant violated a law.

In any case, the party with the burden must prove their case by a preponderance of the evidence — or more likely than not:

  • In a typical negligence claim, you must prove that the defendant more likely than not caused your accident and injuries through their negligence.
  • In a negligence per se claim, you must prove by a greater weight of the evidence (a minimum of 51%) that the defendant violated a law or regulation and their actions were not justified.

Common Defenses to Negligence Per Se Claims

If you pursue a negligence per se lawsuit, you likely have strong evidence that the defendant violated the law.

If you argue negligence per se because another driver was significantly over the speed limit, you might have speed camera data, CCTV footage, and eyewitness testimony.

To claim a driver was drunk, you might cite their Blood Alcohol Concentration (BAC) test result, the crash report filed by police highlighting intoxication as a contributing factor, and CCTV footage from a bar showing them ordering several drinks and later getting into their vehicle.

The defendant may struggle to dispute the evidence, so they may argue they were justified in breaking the law.

There are multiple scenarios where defendants may violate a regulation without it constituting negligence per se: We outline them below, with examples:

The Defendant’s Incapacity Made the Violation Reasonable

A driver has a seizure, which causes them to lose control of their vehicle and cause an accident.

The Defendant Didn’t Know They Had to Comply with a Statute

A driver from another state or country violates a traffic law they did not know about, causing an accident. The defendant must show they could not have reasonably known about the statute for this defense to succeed — ignorance isn’t a valid excuse.

The Defendant Was Unable to Comply Even When Using Reasonable Care

A doctor prescribes the wrong medication to a patient. The doctor exercised reasonable care by checking the label and dosage and consulting the patient’s records but couldn’t administer the correct medication as it was incorrectly labeled.

It Was More Dangerous to Comply with the Statute Compared to Breaking It

A driver sees a speeding vehicle approaching in their rear mirror and moves to the other side of the road, causing a minor crash with an oncoming car. Since speeding results in more fatal car crashes than any other cause, they argue staying in their lane would have been more dangerous, likely resulting in a high-impact collision with the speeding vehicle.

If the defendant has a valid excuse for the violation, the burden shifts back on the plaintiff to establish negligence traditionally — by showing they owed and breached a duty of care.

The Affirmative Defense: Comparative Negligence

An affirmative defense can excuse a defendant from liability, even if evidence proves they are negligent per se.

Whether an affirmative defense excuses a defendant wholly or partially depends on the negligence law applied, which varies by state.

A handful of states prevent plaintiffs from recovering compensation if they are responsible for their accident.

Texas has modified comparative negligence laws, meaning you cannot claim if you are more than 50% liable for your accident.

A defendant may argue you were majorly at fault for the accident despite their breaking the law, in which case you would not be able to claim.

If you are less than 51% responsible, you can file a lawsuit, but your compensation is reduced based on your fault. A defendant can use comparative negligence to partially excuse them from liability and reduce how much they owe you.

Why You Need a Personal Injury Lawyer for Your Negligence Per Se Claim

Negligence per se claims are complex, so it is crucial to seek representation from an experienced Texas personal injury lawyer.

Proving negligence per se requires extensive knowledge of the various laws and regulations a defendant might have violated. Crimes such as DWIs or texting while driving are more egregious examples, but a defendant can break a minor violation and still be negligent per se. This legal doctrine can make it much easier for you to meet the legal standard required to claim compensation, and a personal injury lawyer can explore your options and determine which laws apply to your case.

Establishing a defendant is negligent per se is only the first step. You must prove they caused the accident and connect the defendant’s violation to your injuries. A personal injury lawyer can gather evidence and expert witness testimony to show causation and demonstrate your medical expenses, lost wages, pain and suffering, and other losses.

If you’ve sustained injuries in an accident in Texas, our San Antonio and McAllen personal injury lawyers can help you secure maximum compensation. At Patino Law Firm, we offer a free consultation so you can find out if you have a case, and you won’t pay any fees until we win. To see if you can claim compensation using negligence per se, call 855-LAW-NINJA, submit a contact form, or visit us in McAllen or San Antonio.

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