Brian White | July 14, 2021 | Negligence
Negligence is the basis of most personal injury cases in Texas. Negligence per se is a form of negligence used in cases involving actions that violate the law. Negligence per se can make it possible for individuals to win a personal injury case when there is little to no direct evidence of fault.
Negligence vs. Negligence Per Se
In cases involving negligence or negligence per se, you’re alleging that someone did not act with the level of care that a reasonable person would have used in a similar situation.
A reasonable person is a hypothetical standard used to determine if a person acted with prudence and caution in a situation. Failing to act with reasonable care can be considered negligence.
Proving a Negligence Claim
Negligence claims require that you prove the following legal elements:
Duty of Care
You must prove that the person owed you a duty of care.
For example, a property owner owes a duty of care to visitors to maintain safe premises. Likewise, drivers owe a duty of care to others to safely operate their vehicles and comply with traffic laws. Doctors owe a duty of care to their patients to provide care that meets the accepted medical standard of care.
Breach of Duty of Care
A person breaches the duty of care when they fail to act with the level of care that a reasonable person would have used in a similar situation. For example, driving under the influence of drugs or alcohol is breaching the duty of care. A reasonable person would not drive under the influence. Likewise, a dog owner who fails to restrain their dog adequately might breach the duty of care.
You must link the incident with your injuries. In other words, you must show that the accident “caused” your injuries. If you cannot prove the accident was the direct and proximate cause of your injuries, you cannot win your negligence claim.
The final legal element is damages. If you do not sustain damages, you cannot recover money for your personal injury claim.
When Do You Use Negligence Per Se?
If there is not sufficient evidence to prove causation, you might be able to use negligence per se to win your case. Negligence per se shifts the burden of proof to the defendant to prove that they were not negligent.
You must meet specific requirements to use a negligence per se argument, including:
- You sustained an injury
- The other person violated a law
- The law was intended to prevent the type of injury you sustained
The law must exist to protect the general public. There must also be a fine, jail time, or other criminal penalties for breaking the law.
An example would be laws against drunk driving.
If a driver is involved in an accident and has a .10 BAC level, you can claim negligence per se to allege when:
- You were injured because of a DUI accident
- The other party violated Texas drunk driving laws
- The drunk driving laws were enacted to protect individuals from drunk driving accidents
The drunk driver has the burden of proving he was not negligent. The jury would decide whether the person was negligent and whether that negligence resulted in your injuries. If so, the jury may award you a sum of money for damages.
It is important to remember that negligence per se creates a “presumption” of negligence. Thus, it does not mean that the defendant is automatically guilty of negligence. Instead, it means that the defendant must now provide evidence to prove their innocence.
Deadlines for Filing Negligence and Negligence Per Se Claims in Texas
The Texas statute of limitations applies in negligence and negligence per se cases. Generally, you have two years from the date of your injury to file a personal injury lawsuit. If you file your lawsuit after the deadline, the court will dismiss the case if the defendant raises the statute of limitations as a defense.
Avoid having your case dismissed for a statute of limitations problem by seeking legal counsel as soon as possible after an accident or injury. A Houston personal injury lawyer reviews your case. The attorney explains the laws that pertain to your case and your options for seeking compensation for damages.
Obtaining legal advice early in your case can help you avoid making mistakes that could hurt your claim. It can also benefit you because your lawyer can gather evidence before it disappears or is destroyed.