What is “Negligence?”

What is “Negligence” under Texas law?

Negligence is a theory of legal liability that may hold a person responsible for damages caused to another person. It is probably the most common grounds for legal liability.

Simply put, negligence is the failure to use reasonable care resulting in damages to some other person of property. The elements required under Texas law to prove a negligence claim are:

  • Duty
  • Breach of Duty
  • Causation
  • Damages


In order to hold someone legally responsible for negligence, you first have to show that the person owes some sort of legal duty. A legal duty is nothing more than a legal responsibility. For instance, everyone has a legal duty to obey the traffic laws when they are operating a motor vehicle. Therefore, I may not enter an intersection on red light because I have a duty to stop and yield to cross traffic while my light is red. If I do enter the intersection and causse a collision, then I will be held responsible because I had the legal duty to stop at the red light.

However, there are circumstances where someone has no legal duty and thus cannot be held legally responsible if they cause damages to someone. For example, if I am going though a doorway to a restaurant, I do not have the legal duty to hold the door open for other people. Although I may do so as a courtesy, I am not obligated to do so under the law. So, if some person walking behind me reaches for the same door and injures their shoulder while they are trying to open it, they would have no claim against me for failing to hold the door open for them.

A Duty Can Come From Statutes or Written Laws.

A legal duty may be defined by written laws, such as a statute or regulation. For example, the traffic laws are generally set forth in the Texas Transportation Code, Title 7, Subtitle C “Rules of the Road.”

When there is a statute or law that governs a person’s conduct, that person has a legal duty to act in compliance with those laws. Failure to do so will result in legal liability if someone gets injured or suffers damages as a result of the violation.

A Duty Can Come From Common Law.

However, other duties may be established under common law or previous court decisions. A good example is a claim for premises liability. For instance, a business owner has a general duty to keep their property in a reasonably safe condition so as not to cause injury to their customers. However, that duty is not established by statute or other written rules. Rather, premises liability law is an old and ever changing doctrine established by judicial case law.

Breach of Duty

Once you have established that someone has a legal duty, you then have to show that the person breached that duty. A breach is just another word for “violate.” If a person has a duty, and breaches or violates that duty, then that person may be held liable for the resulting damages.

A good example is a car accident. Let’s say you are going down the road at a reasonable speed. Suddenly, a pedestrian attempts to cross the road outside of a cross-walk or intersection. If you strike that pedestrian, you would not likely be held legally responsible. That is because you have not breached any legal duty to the pedestrian. Rather, you had the right-of-way, and the pedestrian had the duty to cross at designated cross-walk or at an intersection.

But suppose the pedestrian can show that your were speeding or intoxicated at the time of the accident, Then the pedestrian may be able to hold you responsible because your breached your duty to drive a a safe speed and not to drive while intoxicated.


Another element that you must prove in order show negligence is causation. In other words, the other person must have actually caused your damages or injury. Even if someone breaches a legal duty, but did not cause your injury, then that person would not be liable. For instance, if I rear-end another vehicle and damage the rear bumper, I would not be responsible to pay for damages to the front bumper or fender. That is because my conduct did not cause those damages.

Causation in a negligence claim is further broken down into two separate parts:

  1. Cause in Fact
  2. Proximate Cause

Cause in Fact

Cause in fact simply means that there must be an actual chain of events that lead to the damages or injury being claimed. If that chain is broken, then there is no cause in fact.

Take my previous example of the car accident where I rear-ended someone. I would not be responsible for the damages to the front of the vehicle because I did not cause those damages. There is no chain of events that links my conduct in rear-ending the vehicle to the damages to the front of the vehicle.

Many times causation comes into question when dealing with pre-existing injuries. Let’s say you slip and fall in a store and injure your right knee. An MRI shows that you have a torn ACL. However, you tore your ACL in your right knee a month ago in a sports related incident, but haven’t had surgery yet. The store owner would not be responsible for your ACL surgery because there is no causation between the fall and your injury.

Proximate Cause

Proximate cause is a little more complicated to explain than cause-in-fact. Although you can show a causal link between an incident and your damages, your still have to show that the incident was the “proximate cause” of you damages.

In order to demonstrate proximate cause, you have to show that the damages you are seeking are the type that is “foreseeable” as a result of the incident. Foreseeability is the essential element here. It means that the injuries or damages you are claiming must be the type that a reasonable person can foresee, or otherwise expect, to naturally result from the negligent conduct.

Let’s say that you are injured in a car accident. Obviously, you can show that your injuries are proximately caused by the accident because a reasonable person can foresee that injuries may result from a car accident.

But let’s say that your injuries are so severe that it is causes marital problems that leads to a divorce. Now, you want to sue, not just for your injuries, but also your attorneys fees and everything else you lost in the divorce. You would likely not be successful in this claim. Even though you can show that there is a causal relationship between the accident and your divorce, a divorce is not something that one would expect to naturally result from a car accident. Likewise, the damages you suffer because of your divorce would not be proximately caused by the accident.


Have you ever heard the saying “No harm, No foul?” It is a common saying that precisely describes this element of a negligence claim. You must have an injury or damages as a result of the negligent conduct. You cannot sue someone for doing something wrong unless you can show that the person’s conduct damaged you in some way.

If you are in a car accident but did not sustain an injury, you cannot sue for an injury. Some people feel the need to sue even though they were not injured, because its the “principle of the matter.” Unfortunately, “principle” is not a legal ground to support a claim for negligence. You have to show some sort of injury or damages sustained as a result of the conduct.

Damages in a negligence claim can vary from property damages to personal injuries, and more. The types of damages you can sue for are also broken down into two separate categories:

  1. Economic Damages
  2. Non-Economic Damages

Economic Damages

“Economic damages” are the type of damages that can be shown by reference to some written bill, invoice, or record. In other words, they are damages that can be numerically calculated.

The best example would be medical bills after suffering an injury. The medical bills are entered into evidence and calculated by simply adding them up. Another example would be damages to your vehicle after a car accident. You may get estimates for the repairs. The amount you recover would be determined by reference to those estimates.

Non-Economic Damages

“Non-economic damages” are also awarded to compensate an individual. But they are calculated in the discretion of the judge or jury without reference to some written bill or invoice. The best examples would be “pain and suffering” and “mental anguish.” If someone is injured in an accident, they would be entitled to recover for these damages in addition to the medical bills.

However, the amount to be awarded is completely within the discretion of the judge or jury depending on many factors such as the seriousness of the injury, the length of the recovery, and whether the injuries are permanent in nature. The amount awarded would be given as a dollar figure in order to compensate the injured person for the suffering they endured because of the injury.

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