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Personal Injury

  • Negligence per se

Negligence Per Se

Negligence per se can be a complicated topic that we hope to simplify for you. This area of law is different than basic negligence cases.

In a basic negligence case, someone breaches the standard of ordinary care that normally requires us to act as a reasonably careful person. Most negligent cases don’t have distinct laws that make certain bad behavior against the law. For example, there is no law that specifically states doctors cannot be intoxicated while performing a surgery. However, if that happened, a patient could sue the doctor for negligence because negligence is the catch-all for bad conduct.

When a negligent case DOES have a law specifically associated with that type of conduct, negligence per se kicks in. Negligence per se is when a court adopts a law that requires society to follow a certain standard of behavior when involved in specific activities. The law will be written in a way that it will define what a reasonably careful person would do in a situation. The 1987 Texas Supreme Court case of El Chico Corp. v. Poole, provides a good example of negligence per se. In El Chico, a drunk driver left a bar and caused a car accident which killed the other driver. The family of the man who died tried to sue the bar for overserving the drunk driver. The Texas Supreme Court held that because the dram statute creates a duty of care for bars not to overserve drunk patrons, the deceased man’s family could sue the bar under negligence per se [1]. Essentially, the dram statute law defines how a reasonably careful bar should handle drunk patrons and because the bar in El Chico violated the law and overserved a patron, they were negligent per se.

For negligence per se, the person’s conduct either violated the law or it didn’t, we don’t need to consider what a reasonable person would have done in that situation. In the 1998 Texas Supreme Court case Praesel v. Johnson, the court held that the law must clearly define what the illegal conduct is and the injury must stem directly from the violation [2]. To prove negligence per se, it needs to be shown that the defendant violated the law and that violation was the legal cause of the person’s injuries. Another way to put it is, the person broke the law and if wasn’t for them breaking the law, the injury wouldn’t have happened.

If an injured party has solid evidence to prove a defendant is negligent per se, it provides a strong argument in court because the judge or jury doesn’t need to make as many determinations as one does with basic negligence. Important elements must be met before negligence per se will apply:

  • First, the injured party must belong to the class of people that the law was designed to protect.
  • Second, the injury that occurred must be the type of injury that the law was trying to prevent.
  • Third, the law or statute must have some type of penalty attached (fine, jail time, etc.).
  • Finally, the law or statute must clearly establish what type of conduct is prohibited.

Ultimately, the Judge will look at the facts and the above factors to determine if the injured party can go forward with a negligence per se claim. Keep in mind there are potential recognized excuses the defendant may claim if it applies to them. Some examples of recognized excuses in Texas are: lack of mental capabilities (because someone is too young or mentally incapable to understand the law), unforeseeable emergency situations, physical impossibility, or situations where the party doesn’t know and doesn’t have a reason to know they’re in violation of the law [3].

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