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Issues in law that evolve negligence are considered Tort Law, which encompass injuries that one person causes to another person. Tort typically involves physical harm, although other types of harm can be involved in a tort, like economic loss or emotional loss.

The typical result of a tort is the defendant paying money to the plaintiff to cover the damages. Some common torts include product liability, slip and fall accidents, burn injuries, and simple assault cases.

How is Texas Tort Law Different from other States?

Texas is commonly known as a “tort reform” state. It means that a substantial amount of hard work has been done to revise the laws in Texas. Texas is primarily known for putting a limit (cap) on financial damages for medical malpractice claims.

Some unique features of Texas tort law are:

  • Texas tort law does not accept statutory damages. Statutory damages are the damages that a plaintiff can claim even if he has not shown that he has suffered a financial loss. In Texas, a person must legally prove that they have suffered economic losses if he wants to receive damages.
  • In Texas, the citizens are allowed to file suit against any government offices or agencies. Usually, a government entity is protected from such lawsuits under the “sovereign immunity” act; however, in Texas, this act is waived.
  • The Texas Advance Directives Act allows a doctor, health care professional, or facility to end the life-supporting treatment of a patient.
  • A plaintiff claiming negligence will be eligible to receive damages if and only if their share of the liability is equal to or less than 50%.

Hence, Texas’ tort law has extensive consequences for professionals and insurance agencies and is subject to a lot of heated debate.

The Law of Negligence

Texas has a well-defined set of laws to describe ‘negligence.’ As well as how it relates to personal injury claims. Under Texas law, a person can demand economical compensation from another person especially, if they can prove that the injury was due to the negligence of the second person.

If you want to claim negligence, you need to understand the Texas laws related to failure. This will help you recover more damages for your loss, physical or otherwise.

This tort law requires the citizens of Texas to carry themselves in a way that adheres to some standards of conduct set by the state. If a person’s actions disregard these standards, the law demands that the person reimburse anyone hurt as a consequence of that action. In some cases, the negligence law also looks into a person’s unwillingness to act.

Tort Law describes negligence as “conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.”

The Elements of Negligence

If a plaintiff wants to bring a successful negligence lawsuit, he needs to show that all the five elements are present in the lawsuit:

  1. Duty
  2. Breach
  3. Cause in Fact
  4. Proximate Cause
  5. Damages


The case result depends on whether the defendant had some kind of duty towards the plaintiff. A duty comes into play when the law recognizes an association between the plaintiff and the defendant. This association or relationship requires the defendant to act specifically towards the plaintiff. In Texas, a judge, rather than a jury, decide if the plaintiff is owed any duties by the defendant.

For example, if the defendant was carrying sharp tools and struck a child passing by, the judge will first try to decide whether the defendant owes any duty to this child or not. If the defendant was walking on the side of a public road and the tools were precariously held in his arms, then the court will find that the defendant did owe the child a duty. But, if the judge finds that the defendant was working in his backyard. Then the child was trespassing on private property. The court will find that the defendant does not owe any duty to the child.

Breach of Duty

Just showing that the defendant owes the plaintiff a duty is not enough in court. The plaintiff has to prove that not only did the defendant owe him a duty, but that duty was also breached in some way. The defendant breaches a duty by not doing something that he was supposed to do. Unlike the existence of duty, which was a judge decides, the breach of duty is a question that a jury decides. In the above example, the jury will decide if the defendant had exercised proper care when carrying sharp tools.

Cause in Fact

A plaintiff must prove beyond any doubt that the defendant’s actions were directly responsible for the plaintiff’s injury. This is also called a “but-for” causation.

Proximate Cause

This refers to the extent of the responsibilities of the defendant. The defendant in any negligence case is only responsible for the harm that he could have foreseen through his or her actions. If a person has caused the plaintiff damages that he could never have foreseen, then his actions will not be the proximate cause of the plaintiff’s damages.

If the child, in the above example, can prove that the defendant should have known that carrying the sharp tools in a rash and reckless manner would cause the boy harm, then the proximate cause will be confirmed. But if the boy, later that day fell off his bike and hurt his ankle. Then that is an action that the defendant could never have predicted, even in his wildest dreams. Therefore, the plaintiff will not be able to satisfy the jury about the element of proximate cause as to the ankle injury.


It’s not enough that the defendant failed to fulfill his duty as a citizen. The plaintiff must also be able to prove that he has suffered some type of legally recognized damage, typically physical or to property. If a case of negligence has to be proved then actual damage must be shown.

There can be other examples as well. Like, a truck driver owes it to the motorists to drive safely and obey all the traffic rules. If the driver ran a stop sign, he has breached that duty which the law imposed upon him. If the driver hit someone or someone’s car, then that person would have all the five elements to prove their case against the driver.

There are some peculiarities in Texas law. You should know about them if you are going to bring a negligence lawsuit against someone.

Modified Comparative Fault State

Remember one thing, when it comes to negligence, Texas is a modified comparative fault state. This standard is also called the “proportionate responsibility” standard. It means that if you partially responsible for the injury you occurred, your damages will be decreased.

For instance, in the above example, if the boy is found to have been running on the defendant’s land when the injury happened. Then the court will lower the damages awarded to the plaintiff.

51 Percent bar Rule

Texas follows what is called a “51 percent bar rule”. This rule states that if the plaintiff is 51 percent or more responsible for his own injury, then he cannot collect any damages whatsoever.

Fault in Texas Injury Cases

If you’re in a car accident and you’ve dislocated your shoulder and suffered whiplash. You are suffering from extreme pain. Let’s say that it was entirely the other driver’s fault, but no one filed a police report. This means that you will not be paid anything for your lost wages or medical bills or anything else. This is why the fault should be plainly acknowledged in any case.

Here are some things you can do to make sure that the necessary evidence is collected for your case:

Police Report

The police always come to the scene of an accident, especially if there is an injury involved. Once they arrive, they will file a police report. This will contain all the details about what they think happened during the incident.

These reports always contain vital information regarding whose fault it is. For example, the first police officer on the scene might note that the other person was using his cell phone while driving, or speeding.

Make sure that you ask for a copy of that report. This is the most important piece of evidence that describes a person’s fault in the accident.


If you see any people around the site of the incident who might have seen the whole thing unfold, take their names, phone numbers, and addresses. Witness statements are another vital element to acknowledge whose fault it was.

Picture Evidence

Immediately take pictures of anything that you think might be important later on. If the damage is to a vehicle, to passerby’s, to yourself, take pictures from multiple angles. Make sure to get photographic evidence of any skid marks or hit marks or anything that might help prove the fault in the case.

Keep a complete medical record

Carefully log all your doctor visits, prescriptions, diagnosis, bills, etc.

Negligence Lawyer

An experienced lawyer can understand better which evidence will be beneficial for the case and which evidence will hurt the case. Even if you have collected all the evidence and you’re confident that all the elements of negligence are there, it is recommended that you let a local personal injury attorney take care of your case for you. Personal Injury lawyers can handle car accidents, burn injuries, motorcycle crashes, industrial accidents and more. A lawyer knows how to make a compelling case, how to win, how to negotiate a settlement. Contact the best personal injury lawyer in your area today, Walker Texas Lawyer.


(713) 552-1117


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