Chapter 1-11 Negligence Per Se

• Jurisdiction: United States

1-11 Negligence Per Se

1-11:1 Introduction

Negligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by a civil court as defining the conduct of a reasonably prudent person.

1-11:1.1 Related Causes of Action

Negligence, Negligent Hiring, Negligent Misrepresentation, Negligent Undertaking

MUST READ CASES

Moughon v. Wolf, 576 S.W.2d 603 (Tex. 1978)

Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex. 1985)

Perry v. S.N., 973 S.W.2d 301 (Tex. 1998)

1-11:2 Elements

(1) The plaintiff belongs to the class that the statute was designed to protect, and the plaintiff's injury is of a type that the statute was designed to prevent.³⁰¹

• 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.³⁰²

(2) It is appropriate to impose tort liability for violations of the statute.³⁰³

• This is a question of law for the court to determine.³⁰⁴
• Factors which may be considered by the court include: (1) 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; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) 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 (5) whether the plaintiff's injury is a direct or indirect result of the violation of the statute.³⁰⁵

(3) The defendant violated the statute without legal excuse.³⁰⁶

• The violator may excuse his conduct, but he must produce some evidence of a legally acceptable excuse. If some evidence of a legally acceptable excuse such as emergency, incapacity or impossibility is produced in the case by the violator, the litigant charging statutory violation must assume a further burden of requesting an issue which inquires whether the litigant charged is guilty of negligence as measured by the common law or reasonable person standard. The evidence adduced must be more than a mere scintilla and the excuse must be legally acceptable; otherwise, this additional burden does not arise and the common law negligence theory should not be submitted.³⁰⁷

(4) The violative conduct was the proximate cause of plaintiff's injury.³⁰...