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How Texas law treats negligence in a personal injury case. Determining who’s at fault isn’t always straightforward.

What is “negligence” in a personal injury case?

Negligence is defined by the Legal Dictionary as:

In one word, negligence can be described as carelessness. It’s when a person does not take reasonable care over a situation where a prudent person would have taken that level of care.

“Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.”

A simple definition of negligence doesn’t quite explain how it is used in personal injury law.

The “reasonable person” in the definition is used to compare whether or not a defendant has acted negligently. However this definition can pose problems when it’s not clear what actions a “reasonable person” would take. This is one area of law that distinguishes personal injury law from other types of law.

Lawyers use industry standards and common sense to determine what is reasonable and what a reasonable person would do.

Have a question about who may have been at fault in your case? If you believe you may have been partially at fault, in Texas you still have protections by the law. Read on in this post to see how measures such as comparative negligence can help your case in mediation or in court.

Only a personal injury attorney will be able to give you legal advice about the negligent party in your case. Contact McMinn Law Firm for a free consultation.

Car wrecks, work related injuries, wrongful death suits, medical malpractice, and even criminal charges can be considered negligence. But what is the difference between civil negligence and criminal negligence?

Types of negligence:

  • Criminal Negligence: A criminal case usually involves a person (or company) and the state. Criminal law is an area of law that is meant to maintain the stability of society. It is filed by a public court on the national, state, or local level. It applies to acts like murder, manslaughter, speeding, and texting while driving.
  • Civil Negligence: A civil case’s primary purpose is to deal with disputes among people or organizations. Civil law is filed between two (or more) private parties. Instead of state or public officials filing the lawsuit a plaintiff who has suffered harm or loss from a negligent act hires a lawyer who files suit. Examples include car accidents, property damages, or medical malpractice. In these cases the disputes and therefore lawsuits are against an organization or individual; the government does not take action.

Tort is a Civil Wrong

Negligence falls under a part of tort law. A tort is a civil wrong. Tort is not a criminal act and must be solved in a civil court. A “wrong” causes stress or harm to another person and imposes a legal liability. However, many cases of negligence are filed in both criminal and civil courts.

An example of a tort:
A car crash caused by speeding, racing, or texting can all be torts. Torts that are done on purpose, such as when one person punches another it can be an intentional tort called battery.

Read about one of Austin’s most famous assault cases. Joey O’Hare retained McMinn Law Firm after sustaining serious injuries at Kung Fu Saloon.

Examples of Negligent Acts

Instances in which you or someone you know has suffered an injury or a financial loss resulting from a careless incident by a third party are generally negligent acts. For instance, you get rear ended at a stoplight, you slip and fall in a restaurant that didn’t put up a wet floor sign, your doctor accidentally prescribes you the wrong medication.

These are instances when you were owed a certain “duty of care” and that was “breached.” This “breach” “factually caused” you to suffer a loss or harm and now you require “damages” or compensation to help you heal or recover from the negligent incident.

These are the four elements of negligence:

  • Duty of Care: A “duty of care” must be established first in any case where someone is trying to prove negligent wrongdoing. It establishes a reasonable standard of care the defendant should or should have made to prevent the plaintiff from experiencing harm or a loss. There’s not one strict definition, so it may depend upon a lawyer or jury’s interpretation of a situation.
  • Breach of Duty: The second step, breach of duty, calls on the lawyer to be able to show a history of verdicts that demonstrate the duty the defendant owed him was breached.
  • Factual Causation: The third element involves cause and effect. It may seem simple, but this again requires the plaintiff’s lawyer to show how the injury occurred.
  • Damages: Here a plaintiff’s lawyer will show the severity of the damages and economic loss sustained by the plaintiff.
    The damages will include economic and non-economic damages such as pain and anguish.

Read more in-depth about the elements of negligence on this resource comparing negligence and gross negligence.

    Types of Civil Negligence:

    Ordinary Negligence
  • Gross Negligence
  • Pure contributory negligence
  • Pure Comparative Fault
  • Modified Comparative Fault

Some of these systems of fault draw harsh criticism. For instance, it has been said that the system of pure contributory negligence is too harsh on the plaintiff because even the slightest amount of contributory negligence bars the plaintiff from recovery. That may be why few states use this system. These include Alabama, Washington D.C., Maryland, North Carolina, and Virginia.

In contrast, the status of pure comparative fault has been criticized because it is possible even for parties are 99% at fault to recover from damages. It is thought that the lack of penalties on wrongdoing may not deter bad actors from negligent actions.

Texas’ uses the policy of Modified Comparative Fault with a 51% bar rule. Each party is held responsible for damages in proportion to the percentage they are found at fault. With the additional rule of 51% bar, a party that is more than half at fault cannot recover compensation.

Glossary of terms:

Still have questions? Reference these terms to be sure that you understand the components of negligence. If you still have questions regarding the role of negligence in your case, contact the attorneys at McMinn Law Firm.

Comparative Negligence

Texas is one of thirty states states that adheres to comparative negligence law. Comparative negligence separates fault between the plaintiff and defendant according to a percentage. How does this work in practice?

Say that a man is speeding through an intersection. A woman makes an unprotected left turn through the intersection and hits the man speeding through it. The crash was serious, and the man sustained injuries.

In a trial, the jury will decide how much the damages were worth. And in this case, the jury will also determine a percentage of fault and attribute it to each party.

Since the man was speeding, he may receive 30% of fault in causing the crash. That means he’s only able to receive 70% of the available compensation.

If the case proceeds the trial, then the jury will find the percentage of guilt each party holds. They will also determine the value of the case. Say they decide the damages are worth $100,000 – the man who was speeding may only recover $70,000 for his injuries.

Modified comparative negligence:

In states that adheres to modified comparative negligence rules, a plaintiff will be forbidden from recuperating any damages in any way if he or she is considered to be at least fifty percent liable for instigating the car accident. However, a plaintiff whose share of liability is anything at most fifty percent keeps the right to obtain payment, in an amount up to the percentage of the other party’s fault.

Pure contributory negligence:

Under pure contributory negligence a damaged party can not recover if they are even 1% at fault.

Pure comparative negligence (fault):

In pure comparative negligence jurisdictions, a negligent plaintiff might recuperate payment from any other party who assumes some extent of liability for the car accident, despite the plaintiff’s own percentage of fault. Even a plaintiff who is found to be ninety percent at fault for an accident might still recuperate payment for ten percent of his or her damages.

Proximate Cause

This is generally how or why the injury occurred. The “proximate cause” is the primary cause of an injury.


In a literal sense, subrogation means that one party stands in the place of another party. Subrogation surfaces in personal injury cases often. IF a person has been injured and someone other than the person at fault pays for damages, subrogation occurs.

Strict liability

A strict liability, can sometimes be called absolute liability. It states that one party is at fault for damages (injury) even if the person (or entity) was not at fault or negligent. It has been applied to tort law, an area of law where personal injury falls. The most common strict liability cases in today’s courts come with defectively manufactured products.

In some states such as California, dog bites can fall under strict liability. In Texas, a dog bite victim has to prove that the owner “knew” that the animal had a propensity to bite or engage in aggressive behavior. Therefore, Texas courts will apply a “strict liability” rule if the dog has previously been classified as “dangerous.”

Read about how McMinn Law Firm recovered a maximum settlement, plus punitive damages for a man injured by a dog. This case involved “strict liability.”

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