22 June

Types of Negligence in Texas

Reviewed for accuracy by attorney Julian Fertitta

Negligence is frequently a central component in personal injury cases, but did you know that there are many different types of negligence? Just as there are many types of personal injury cases, there are also many types of negligence. “Negligence” alone is a blanket term that covers a wide spectrum of negligent behavior. In fact, some negligence laws differ from state to state.

If you are pursuing damages for an accident caused by negligence, it is important that you understand the type of negligence you intend to prove occurred. Because, in order for you to receive compensation, you will need to prove beyond a reasonable doubt that your injuries were a direct result of this negligence.

Not familiar with the types of negligence recognized in Texas? Grimes & Fertitta, personal injury lawyers in Houston and The Woodlands, have created an overview of the more common types of negligence in Texas.

If you have more questions regarding negligence and need help pursuing justice in a personal injury case, call Grimes & Fertitta today at 713-224-7644 for a free consultation. We are an experienced personal injury law firm that values conscientious representation and has earned a reputation for winning negligence cases.

What are the four main parts of negligence?

Before jumping straight into different types of negligence, we should review the different elements you’ll need to prove in your negligence claim. It’s important to keep these elements in mind when learning about different types of negligence and the burden of proof each will bear.

Negligence claims are based on the idea that people should be able to expect a typical standard of care from others, especially professionals who are being paid for their services. When those expectations are violated and result in injury, negligence claims arise.

In order to prove negligence, you and your lawyer must prove that the following four main elements of negligence occurred:

Duty: The defendant had a duty to act (or not act) with a standard of care that any average, responsible person could reasonably expect.
Breach of Duty: The defendant violated or “breached” that duty and failed to provide the applicable standard of care.
Cause in Fact: The injury was “in fact” caused by the defendant’s breach of duty and failure to provide the applicable standard of care. It is not enough to show that a defendant’s negligence created a condition in which the accident could have occurred.
Proximate Cause: An average, reasonable person could have foreseen that their breach of duty/failure to provide standard care would cause injury or harm.

Note that clients must also then prove to the court that they were actually harmed by the accident. Some firms, therefore, include injuries or “damages” (physical and/or mental) as a fifth element of a case that requires proof in order to earn compensation.

How many types of negligence are there in Texas?

1. Modified comparative negligence

There are many types of negligence used in Texas cases, including gross negligence, criminal negligence, and vicarious liability. However, the most common type of negligence used in cases in Texas is a type of modified comparative negligence — specifically, the 51% bar rule — which is lieu of either other types of comparative negligence or contributory negligence. To better understand why Texas has opted to use this form of negligence, let’s quickly define these types of negligence.

CONTRIBUTORY NEGLIGENCE
Contributory negligence, also known as pure contributory negligence, is a type of negligence applied by some states that does not allow someone to claim damages if their own actions contributed to their accident and injuries in any way. This type of negligence has become less common as more and more people have realized that it can subject accident victims to a second victimization. Texas no longer recognizes contributory negligence.

COMPARATIVE NEGLIGENCE
Commonly viewed as a more fair means of pursuing negligence claims, the use of comparative negligence has nevertheless had its own issues. For that reason, different states use a different version of comparative negligence:

Pure comparative negligence: This type of comparative negligence, also called “pure comparative fault,” is applied by some states and entitles a person to collect damage even if that person is partially responsible for the injuries they received in an accident. The most common example used to describe this scenario describes a situation in which person A speeds through a red light and hits person B, who had the right of way, but who was also speeding. Damages are paid according to a set percentage based on the degree of fault. Unfortunately, according to these terms, while someone can pursue claims if they were not primarily at-fault, they can also pursue claims if they were primarily at fault for an accident. These allowances can lead to petty suits and counter-suits.
Modified comparative negligence and the 50% bar rule: Technically a mix of contributory and comparative negligence, this type of comparative negligence allows someone to claim damages only if they were less than 50% (as in 49% or less) at-fault for their accident. The damages they can claim will be reduced according to the percentage to which they were at-fault for their accident. However, if the plaintiff is 50% or more at-fault for their accident, they cannot claim damages.
Modified comparative negligence and 51% bar rule: This type of negligence is similar to the 50% bar rule, except it allows for plaintiffs to collect damages if they were 50% or less at-fault for their accident, but not if they are 51% or more at-fault. Like the 50% bar rule, the amount of damages someone can claim is reduced according to the percentage to which they were at-fault for their accident. Texas uses the 51% bar rule in its comparative negligence cases.

Texas recognizes modified comparative negligence that follows the 51% bar rule.

2. Vicarious Liability

This form of negligence is used when a defendant may be held responsible for the actions of someone else who caused an accident. For example, a parent may be held vicariously liable for the actions of their children if they’re under the age of 18 (children under 7 are legally defined as being incapable of negligence), an employer may be held vicariously liable for the actions of their employee. A pet owner can also be held vicariously liable for the actions of their pet.

3. Gross Negligence

Gross negligence is a much more serious accusation than negligence alone. To prove that someone is guilty of gross negligence, you must prove that someone was aware that their actions carried a high probability of extreme risk, but acted anyway with conscious indifference to the consequences. Common examples used to describe gross negligence include speeding in a car near/through a crowd of pedestrians or leaving a patient’s bandages unchanged for several days in a row. Unlike “standard” negligence, clients may also seek punitive damages (damages meant to punish someone) on top of compensatory damages when charging someone with gross negligence.

4. Criminal Negligence

Criminal negligence is used in criminal law, not civil law (and therefore not personal injury law). Nevertheless, criminal negligence is often referenced in popular culture, so it bears explaining here. As defined by section 6.03(d) of the Texas Penal Code, criminal negligence is used to describe a defendant’s potential state of mind when committing a crime. Specifically, “a person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

The importance of establishing negligence.

In personal injury cases, the burden of proof rests on the shoulders of those bringing suit, and proving negligence is rarely a cut and dry matter. Hearsay alone does not constitute proof and, depending on the defendant, you may be up against a team of trained insurance lawyers whose own clients/employers are pushing for mitigation of losses over helping those who need it.

For those who are recovering from an injury or a loss, this is often expecting too much. Once retained, an experienced personal injury attorney like those at Grimes & Fertitta can help you collect the evidence you need to build a solid case.

Their efforts can include gathering official reports and photos, interviewing witnesses, preserving evidence that may otherwise be destroyed, and enlisting the aid of investigators, subject-matter experts, and accident reconstructionists to testify on your behalf. Just as importantly, they will help you navigate the ins and outs of personal injury law and protect you from insurance companies who may use their own experience to your disadvantage.

Negligence shouldn’t be the end of the story. Get help with Grimes & Fertitta.

Building a strong case takes time, effort, and an in-depth understanding of the law. Whether you’re concerned that a parent is suffering from nursing home abuse, are worried that your child may have been subject daycare provider negligence, or need a workplace injury lawyer in Houston or The Woodlands to fight your employer for accident compensation, Grimes & Fertitta is here to provide you with the strong representation you need.

We aim to get you the maximum compensation possible while providing you with straightforward counsel, care, and peace of mind. We are here for you from consultation to compensation. And we will never treat you like “just another case number.”

To get your case off to a strong start, call us at 713-224-7644 or contact us online today for a free consultation.

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