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NegligenceA personal injury claim arises when one person’s misconduct injures another person. The defendant’s conduct might have constituted ordinary negligence (something like “carelessness”), gross negligence (extreme carelessness), or intentional misconduct. Ordinary negligence claims are the most common of all personal injury claims.

The Four Legal Elements of Negligence

The Four Legal Elements of NegligenceTo win a personal injury claim based on negligence, you must prove each of the four legal elements of negligence on a “preponderance of the evidence” (“more likely than not”) basis. It is much easier to win a negligence claim than to win a criminal prosecution.


With the possible exception of small children, everyone must act with reasonable care to avoid injuring other people. This duty includes the duty to refrain from acting in an unreasonably dangerous manner. It also includes a duty to act when necessary to prevent an injury (warning someone of a dangerous condition on your property, for example). A professional must observe an elevated duty of care when practicing their profession.

Breach of Duty

A breach of duty is an action, or a failure to act, that is inconsistent with your duty of care. For example, following someone too closely while driving (“tailgating”) is a breach of the duty of care, and so is failure to stop at a stop sign.


Texas recognizes three types of damages-–economic, non-economic, and punitive damages:

  • Economic damages are compensatory damages that are concrete and easy to count—medical expenses, lost earnings, etc.
  • Non-economic damages are compensatory damages that are abstract and difficult to count—pain and suffering, mental anguish, loss of enjoyment of life, etc.
  • Punitive damages are not compensatory damages. Instead, their purpose is to punish the defendant for outrageous conduct and deter others from repeating it. Most courts are reluctant to award punitive damages to personal injury victims even when they award generous compensatory damages.

You must prove both the existence and the amount of your damages.


Causation is the link between the defendant’s misconduct and the harm you suffered. You must prove two forms of causation—cause in fact and proximate cause.

Cause in Fact

You prove cause in fact by showing that you would not have suffered an injury if the defendant had not committed misconduct. In a negligence claim, the defendant’s misconduct is typically a failure to perform an act, such as failure to warn of a slippery floor.

Proximate Cause

It is not enough to prove that an accident would not have occurred without the defendant’s misconduct. You must also prove that your injury was a reasonably foreseeable consequence of the defendant’s misconduct. It doesn’t matter whether the defendant actually foresaw it. What matters is whether a “reasonably prudent person” would have foreseen it.

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Negligence Per Se

Negligence per se is a nuance of personal injury law that might provide you with a shortcut to proving negligence. Usually, the determination of negligence is subjective. However, if the defendant violated a public safety law (such as a building code or a trucking regulation), a court might find them automatically negligent.

That doesn’t mean you automatically win your claim, but it helps. Once you prove negligence, you still need to prove the damages you suffered, and you must prove that the defendant’s negligence caused your damages. Negligence per se is easiest to prove in highly regulated activities such as commercial trucking.

Comparative Negligence

Sometimes more than one person’s negligence causes an accident. When this happens, Texas comparative negligence law determines the distribution of damages. The use of comparative negligence principles is widespread in car accident claims.

A court will assign each negligent party a percentage of fault. It will subtract this percentage of fault from that party’s damages. However, a party that is more than 50% at fault will lose 100% of its damages and will have to pay part of the other party’s damages under Texas law.

Professional Negligence

Someone with specialized training must act with greater care than the average person. For example, consider the case of the duty of care imposed upon a “Good Samaritan” with no medical training who renders first aid after witnessing a car accident. Compare that duty of care with the duty of care imposed upon the emergency room doctor who treats the same accident victim after they arrive at the hospital.

A doctor must exercise an elevated duty of care, consistent with their training and experience, once a doctor-patient relationship is established. This principle applies not only to doctors but also to other professionals—an electrician who installs electrical wiring in your home, for example.

This higher duty of care applies only when the person is utilizing their specialized training. For instance, a doctor has a higher duty of care when performing a medical procedure but would not have a higher duty of care if you asked them for help on the side of a roadway.

Expert Witnesses

An expert witness is someone with a high degree of demonstrated knowledge in a particular field, such as cardiology. Some negligence claims, particularly those where the defendant is a professional, require expert witnesses to testify on the existence or value of a claim. For example, personal injury victims routinely use expert witnesses to win medical malpractice and product liability claims.

Gross Negligence and Punitive Damages

Gross negligence is an extreme form of negligence where the defendant is aware of the risk of injuring others but deliberately ignores the risk. For example, a driver in a DUI accident might face a credible accusation of gross negligence. If you prove gross negligence, you can use it to support a claim for punitive damages.

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Contact a Lawyer If You Think You Might Have a Negligence Claim

If you suspect that someone else is responsible for an injury you suffered, you may be right. Schedule a free initial consultation with an experienced personal injury lawyer from FVF Law in Austin, TX at (512) 982-9328. A consultation can shed light on whether the other party is liable and how much your claim is worth.

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