Negligence and Texas State Laws

Establishing negligence in a Texas personal injury case – what you need to know

Texas has established laws to define what ‘negligence’ is pertaining to personal injury claims. Under Texas law, you have the right as the injured party to pursue financial compensation for damages that are the result of negligence of another party or entity.

Texas has several statutes under Texas Civ. Prac. & Rem. 33.001 that you should understand if you intend to file a personal injury claim. Understanding the rules in Texas will make it more likely that you can recover damages for your injuries, lost wages and out of pocket costs.

• 5 elements of negligence in Texas
• Texas is a modified comparative fault state
• Modified joint and several liability
• Mental anguish damages in Texas
• Damage caps in Texas

5 elements of negligence in Texas

In a personal injury lawsuit, the legal standard to win the case is ‘by a preponderance of the evidence.’ This is easier to prove than ‘beyond a reasonable doubt,’ which is the standard in a criminal case.

As the plaintiff in a personal injury action in Texas, you must demonstrate in your negligence case that these five elements existed:

• Duty – The defendant was supposed to act/not act in some way, and owed you a duty to do/not do so. For instance, a driver has a duty to pay attention to his driving, and should not be chatting on a cell phone while behind the wheel.
  
  
• Breach of duty – The defendant did not do something, or failed to not do something.  For example, a driver who was reading Messenger on his cell phone and hit you in a crosswalk breached his duty to watch the road.
  
  
• Cause in fact – Your injury was in fact caused by the breach of duty by the defendant. For instance, you would not have been hit and hurt if the driver had been watching his driving instead of his cell phone.
  
  
• Proximate cause – Would a 'reasonable persona' find it obvious that texting and driving could hurt someone? For example, the driver should have realized that texting behind the wheel is hazardous.
  
  
• Damages – You must have suffered actual hardship that the civil justice system can compensate you for.

If you can establish these five elements in a personal injury claim or lawsuit, you may be able to recover financial damages under Texas law.

Texas is a modified comparative fault state

When it comes to establishing negligence, remember that Texas uses a modified comparative fault standard to apportion fault and to award damages. Texas also refers to this standard as ‘proportionate responsibility.’ This means that your damages award could be reduced if it is found that you are partially at fault for the injury.

For instance, if you are driving down the street in Dallas texting on your cell phone and are hit by a car that runs a stop sign, the court could determine that you were 40% at fault for the accident. If you are awarded $20,000 in damages, this would reduce the award by 40% or $8,000.

Texas also follows what is known as the 51 percent bar rule. This means that if you are 51% or more at fault for your injury, you are barred from collecting damages.

There also are some other peculiarities in Texas law of which you should be aware.

Modified joint and several liability

Before 1995, Texas followed a traditional ‘joint and several liability rule.’ This made each defendant liable for the entire amount of the plaintiff’s damages. This was regardless of each defendant’s degree of fault in the accident.

So, the plaintiff could make his choice from whom he would collect his damages.

However, in 1995, Texas changed its laws and it now follows a rule that some call ‘modified joint and several liability.’ This rule states that a defendant is only liable for the full amount of the plaintiff’s damages IF they are found to be 50% responsible for the accident.

Otherwise, they are only liable for an amount that is equal to their percentage of fault. Under current Texas law, the plaintiff may only recover the full amount of damages from the defendant if the jury has determined he is more than 50% responsible for the injury.

Mental anguish damages in Texas

The Texas Supreme Court has stated that there is no general duty not to negligently inflict emotional distress under state law. However, that decision also states that the decision does not affect your right to recover ‘mental anguish damages.’ See Boyles v. Kerr (“Boyles II”), 855 S.W.2d 593 (Tex. 1993).

But getting the jury to award mental anguish money is challenging. Insurance adjusters in Texas do not often offer much for this type of damages, unless you have strong evidence that you suffered substantial mental anguish.

Usually, there would have to be more evidence than, say, a relative claiming that you suffered ‘severe mental anguish.’ There probably would have to be documented expert evidence to establish the mental anguish, such as the testimony of a physician or witnesses.

In most states, mental anguish is part of regular non-economic damages in personal injury cases. But in Texas, it is its own separate element of damages. Courts in Texas have demonstrated in past cases that the following could be construed as ‘mental anguish:’

• Grief
• Severe disappointment
• Public humiliation
• Despair
• Shame
• Wounded pride

Damage caps in Texas

Punitive damages in Texas serve as punishment in cases where there is grossly negligent behavior.

However, punitive damages cannot exceed two times the amount of economic damages, plus the amount equal to non-economic damages not to exceed $750,000 or $200,000, whichever is greater.

There also is a cap in place in Texas for medical malpractice damages. This is covered under the Medical Malpractice and Tort Reform Act of 2003. You may sue a healthcare provider for no more than $250,000, and each healthcare facility involved in the case for $250,000. Further, the amount may not exceed $500,000 for all of the facilities involved in the single incident.

So, the maximum amount you may recover from non-economic damages in a Texas medical malpractice case is $750,000. This amount will be adjusted for inflation since the law was passed, so the amount in today’s dollars is much greater.

Texas state law contains a number of unusual provisions that make recovering some forms of financial damages challenging in a personal injury case. Please refer to our other Enjuris articles about Texas state law to get up to speed, such as this one about 3 Types of Civil Liability and Examples in Texas Cases.