Negligence per se is a tort concept 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).  Negligence per se is proven by showing, among other things, that the defendant violated a statute for which tort liability may be imposed, without excuse, and that the act in violation of the statute proximately caused the plaintiff's injury. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998). 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 at 304.  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.  However, even if these threshold questions can be answered affirmatively, there are additional factors the Texas Supreme Court believes courts need to consider in deciding whether to apply a specific statutory requirement to a particular claim such as: (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. Perry v. S.N., 973 S.W.2d at 309.


Statute of Limitations.  The statute of limitations for a negligence per se claim is two years. Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 386 (Tex. Civ. App. 1978); Tex. Civ. Prac. & Rem. Code § 16.003.

Negligence Per Se

© 2020 Mark Courtois

© 2020 Funderburk Funderburk Courtois, LLP.   All rights reserved.

Unless otherwise noted, attorneys in the firm are not certified by the Texas Board of Legal Specialization.

FIRM-PEER-RATED-WH-250.png
  • s-facebook
  • Twitter Metallic
  • s-linkedin