law-negligence-per-se | ordinary negligence | gross negligence | statutory violation | What is
NEGLIGENCE PER SE
As explained by the Texas Supreme Court, "[n]egligence per se is a tort concept whereby a
legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a
reasonably prudent person," and "[i]n such a case the jury is not asked to judge whether or not the
defendant acted as a reasonably prudent person would have acted under the same or similar
circumstances" because "the statute itself states what a reasonably prudent person would have done."
Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). In a negligence per se
action, "the trial court merely has the fact finder decide if the tortfeasor committed the act proscribed
by the statute and if the act proximately caused injury." Borden, Inc. v. Price, 939 S.W.2d 247, 250
(Tex. App.--Amarillo 1997, writ denied). Thus, while negligence per se might be characterized as
"merely one method of proving" negligence, and while negligence per se has been determined to be a
cause that is not "separate and independent from a common-law negligence cause of action," see
Zavala, 883 S.W.2d at 245, the trial court could have reasonably concluded that the mid-trial addition
of AP's negligence per se allegations, based upon the alleged violations of the specific regulations,
would result in the reshaping of AP's general negligence cause of action and would cause a delay in
the trial proceedings.
Air Products & Chemicals Inc. v. Odfjell Seachem (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)
(Jennings)
(jury charge error claim overruled, harmful error analysis, negligence per se claim, amending
pleadings)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00591-CV Air Products & Chemicals Inc. v. Odfjell Seachem A/S, Odfjell Asia Pte. Ltd., and
Odfjell Singapore Pte., Ltd Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
Negligence per se is not a separate cause of action that exists independently of a
common-law negligence cause of action. Zavala v. Trujillo, 883 S.W.2d 242, 246 (Tex. App.
- El Paso 1994, writ denied). Rather, negligence per se is merely one method of proving a breach of
duty, a requisite element of any negligence cause of action. Reynolds v. Murphy, 188 S.W.3d 252,
267 n.20 (Tex. App.- Fort Worth 2006, pet. denied) (quoting Zavala, 883 S.W.2d at 246). Here, while
that specific option was not available to Thomas, the trial court granted her request to submit Chris's
non-use of a seat belt through a broad-form negligence question and, in fact, the jury found Chris
negligent. Thus, because the requested instruction would not have produced a different outcome, we
cannot conclude that Thomas was harmed by the omission of the requested instruction.[3] See Mieth
v. Ranchquest, Inc., 177 S.W.3d 296, 305 (Tex. App.- Houston [1st Dist.] 2005, no pet.) (A[T]he trial
court abused its discretion by refusing to submit an instruction on negligence per se. However,
because the jury found [the defendant] negligent under the common-law definition, the trial court's
error was harmless.").[4] Thomas v. Uzoka (Tex.App.- Houston [14th Dist.] May 28, 2009)(Sullivan)
(auto collision liability, negligence per se defense nonuse of seatbelt, proportionate responsibility,
allocation of fault)
Thomas responds that she was harmed by the omission because, had the jury known that the non-use
of a safety belt is prohibited by statute, it might have assigned a higher percentage of responsibility to
Chris, thereby reducing the amount of Thomas's liability for the damages awarded. See Tex. Civ.
Prac. & Rem. Code Ann. § 33.012(a) (Vernon 2008). However, as this Court noted in Patterson v.
Landua, a negligence per se instruction does not affect the jury's apportionment of responsibility
among various causes of a plaintiff's injuries. No. 14-97-00372-CV, 1998 WL 322693, at *4 (Tex. App.
- Houston [14th Dist.] June 18, 1998, pet. denied) (not designated for publication). Negligence per se
may substitute for proof that a legal duty was breached; however, it does not compel the jury to
conclude that the statutory violation was a proximate cause of the damages claimed. See Carter, 584
S.W.2d at 278 (indicating that, even when negligence per se is submitted, a jury must still decide
whether statutory violation was a proximate cause of the claimed damages); Durham, 270 S.W.3d at
719.
Because apportionment of responsibility is a subsidiary question that goes to causation, it is similarly
unaffected by a negligence per se instruction. See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a)
(Vernon 2008) (“The trier of fact . . . shall determine the percentage of responsibility . . . with respect
to each person's causing or contributing to cause . . . the harm for which recovery of damages is
sought[.]") (emphasis added); id. § 33.011(4) (defining “percentage of responsibility" as percentage
attributed to each party “with respect to causing or contributing to cause" claimed damages).
Therefore, it cannot be said that inclusion of a negligence per se instruction would have altered the
jury's decision to assign to Thomas ninety-eight percent of the responsibility for causing Chris's death.
See Shupe, 192 S.W.3d at 580. Accordingly, Thomas has not shown that the absence of the
requested instruction probably caused the rendition of an improper verdict. See Tex. R. App. P. 44.1
(a)(1).
Negligence per se tort claims are established when a plaintiff shows that a defendant, without
excuse, violates a statute or ordinance setting an applicable standard of care if the statute is designed to
prevent an injury to that class of persons to which the injured party belongs. See El Chico Corp. v.
Poole, 732 S.W.2d 306, 312 (Tex. 1987). Because as a matter of law, the acts complained of – the
failure to file the sale and purchase agreements – do not constitute a violation of the Penal Code, as alleged,
such acts cannot constitute a basis for a negligence per se claim. The DTPA facially does not establish an
applicable standard of care for imposing liability based on negligence per se. The act, rather, is a
comprehensive consumer-protection plan establishing its own penalties. See Johnson v. Sawyer, 47
F.3d 716, 729 (5th Cir. 1995) (recognizing that Texas has no law creating common law cause of action
for statutory violation for which violation there is express and comprehensive statutory cause of action).
Any presumed violation of the DTPA here does not constitute negligence per se sufficient to establish
liability. We overrule appellants’ fourth point of error. 14-99-00535-CV (2000)