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NEGLIGENCE PER SE

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					   NEGLIGENCE PER SE
The Absolute versus Conditional Duty Doctrine
                          By
                   Chuck W. Shiver II
               Hermes Sargent Bates L.L.P.
                 Transportation Section
                        5/21/04
                 NEGLIGENCE PER SE
       The Absolute versus Conditional Duty Doctrine

                                Table of Contents


I.    Negligence per se memo

II.   Special Exceptions Language
                                 NEGLIGENCE PER SE MEMO

        Negligence Per Se is a tort concept whereby a legislatively imposed standard of conduct
is adopted by the civil courts as defining the conduct of a reasonably prudent person. Carter v.
William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). An unexcused violation
of a statute constitutes negligence per se if that statute was designed to prevent injury to the class
of persons to which the injured Plaintiff belongs and the Plaintiff's injury is of a type that the
statute was designed to prevent. Perry v. S.N., 973 S.W.2d 301, 304-05 (Tex. 1998). When the
legislature fixes a standard of reasonable care through the enactment of a statute, the trier of fact
must determine only if the tortfeasor committed the act prescribed by the statute and if the act
proximately caused the injury. Moughon v. Wolfe, 576 S.W.2d 603, 604-605 (Tex. 1978).

        Questions arise as to whether a particular statute can be the basis for negligence per se.
This is especially true in regards traffic statutes. Although Article 6701(d), entitled Uniform Act
Regulating Traffic, (now codified in the Texas Transportation Code) does impose various duties
upon those operating motor vehicles in this state, not every violation of Article 6701d constitutes
negligence as a matter of law. Ordonez v. McCurdy, 984 S.W.2d 264, 269 (Tex.App. - Houston
[1St Dist.] 1998). (Citing Caughman v. Glaze, 412 S.W.2d 357, 362 (Tex.Civ.App. San Antonio
1967, writ ref d n.r.e.).

        On a number of occasions, Texas courts have held that violations of particular sections
found in Article 6701d did not constitute negligence per se. These courts have held that because
a breach of these particular sections was conditioned upon proof that the Defendant failed to act
“safely,” “with safety,” or “prudently,” these sections imposed upon the complainant the burden
of proving that his opponent acted unreasonably. See Cudworth v. South Texas Pizono
Construction Co., 705 S.W.2d 315, 317 (Tex.App.-San Antonio 1986, writ ref’d n.r.e.) (holding
that whether a driver operated his vehicle on an approved shoulder “in safety,” as per §54A,
depends upon whether he acted reasonably under the common law); Renfro v. Ramsey, 477
S.W.2d 648, 650 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ) (holding that whether a
driver “safely” entered an intersection, as per §71(c), depends upon whether he acted prudently);
Hemphill v. Meyers, 469 S.W.2d 327, 328 (Tex.Civ.App.-Austin 1971, no writ) (holding that
whether a driver yielded the right-of-way as per §74, depends upon whether he acted negligently
or unreasonably).

        These courts have reasoned that, if a particular statute provides an absolute standard for
determining civil liability, an unexcused violation of that statute constitutes negligence per se. If,
on the other hand, a statute imposes a duty that is not absolute, but, rather, is conditioned upon a
finding that the violator failed to act “safely” or “prudently,” a violation of the statute does not
constitute negligence per se. For these statutes, the “reasonable person” standard of common law
negligence is read into the statute, thus requiring the jury to determine, as a matter of fact,
whether the motorist acted as a reasonably prudent person would have under the same or similar
circumstances.


               In Ordonez v. McCurdy, the 1st Court of Appeals in Houston dealt with an appeal
regarding a refusal to submit a negligence per se instruction to the jury on a violation of Article
6701d § 61(a), (now codified as Transportation Code §545.062). This statute required a motorist
to maintain an assured clear distance between his vehicle and the vehicle ahead of him. Ordonez
v. McCurdy, 984 S.W.2d 264, 271 (Tex.App.–Hous. [1st Dist.] 1998, no writ).

         The Court in Ordonez found support in Perry v. S.N., wherein the Texas Supreme Court
outlined several factors to be considered in determining whether it is appropriate to impose tort
liability for violations of a particular statute. Those factors include:

       (1)     Whether the statute is the sole source of any tort duty from the Defendant to the
               Plaintiff or merely supplies a standard of conduct for the existing common law
               duty,

       (2)     Whether the statute puts the public on notice by clearly defining the required
               conduct,

       (3)     Whether the statute would impose liability without fault,

       (4)     Whether negligence per se would result in ruinous damages disproportionate to
               the seriousness of the statutory violation, and

       (5)     Whether the Plaintiff's injury is a direct or indirect result of the violation of the
               statute.

               Perry, 973 S.W.2d at 305-6

        In Ordonez, appellees argued that the standard set in §61(a) was conditional in nature,
and, the statute did not provide an absolute duty sufficient to support the application of
negligence per se. The Court found that this argument closely paralleled the second factor listed
in Perry. Ordonez, 984 S.W.2d at 268. Noting that such statutes do not clearly put the public on
notice by clearly defining the required conduct, the Court held that a violation of Article 6701d §
61(a) is not negligence per se; rather the reasonableness of the conduct of the motorist is a
question for the trier of fact. Id. at 271.

         In Booker v. Banker, the Dallas Court of Civil Appeals held that Article 6701d §68(a)
and Article 6701d §72, (now codified as Transportation Code §545.103, and §545.104), “come
within the class of statutes in which the common-law standard of the reasonably prudent man
must be used in determining as a matter of fact, not as a matter of law, whether the conduct of a
motorist is negligent. The duties imposed by these statutes are not absolute, they are conditional.
They do not dispense with the necessity of a finding of fact as to whether the conduct of a
motorist was negligent under the circumstances.” Booker v. Banker, 306 S.W.2d 767, 773-74
(Tex.Civ.App. – Dallas 1957), writ ref d n.r.e.

       In Renfroe v. Ramsey, the 14th Court of Appeals in Houston held that Article 6701d
§71(c), (now codified in Transportation Code §545.151), imposed a duty on a driver which “is
not absolute, rather is conditional.” Renfroe v. Ramsey, 477 S.W.2d 648, 650 (Tex.Civ.App. -
Houston [14th Dist.] 1972). The Court stated that whether the appellant could “safely” enter the
intersection without interference or collision with traffic is a question of fact to be determined by
the evidence. Id. The Court went on to state that the prudent driver standard must be applied in
determining whether defendant's conduct was negligent. Id. The Court found that §71(c) does not
establish an absolute standard of conduct so that any breach constitutes negligence per se. The
Court described this provision as “one of those provisions couched in a broad and vague terms,
which arguably include the ‘reasonable man’ standard.” Id. Finally, the Court observed that
violation of statutory standards of conduct which are phrased in terms such as “plainly visible”
or “with safety” has been held by Texas Courts not to constitute negligence per se, and instead
the reasonable man standard has been read into the statute. Id.

         In London v. Bergeron, the Beaumont Court of Civil Appeals held that the Article
6701d §73(a,b), (now codified in Transportation Code §545.153), “duty to yield the right-of-way
is not absolute, but is conditional.” London v. Bergeron, 398 S.W.2d 297, 299 (Tex.Civ.App.
-Beaumont 1966), writ ref d n.r.e. This statute required a motorist to stop in obedience to a top
sign, and then proceed with caution, yielding to vehicles approaching so closely as to constitute
an immediate hazard. Id. The Court held that “where the duties imposed by statute are
conditional, they do not dispense with the necessity of finding of fact as to whether the conduct
of a motorist was negligent under the circumstances.” Id.

       In Borden Inc. v. Price, the Amarillo Court of Appeals held violations of several Article
6701d provisions including §166(b,c), (now codified in Transportation Code §545.351), related
to speed of vehicles, were not negligence per se. Borden, Inc. v. Price, 939 S.W.2d 247, 250
(Tex.App. - Amarillo, 1997) writ denied.

       In Borden, the Court analyzed §166 (b) and (c) which provided that:

       a driver of a motor vehicle must operate a motor vehicle at a speed that is reasonable
       and prudent under the conditions and having regard to the actual and potential hazards
       then existing and at a speed necessary to avoid colliding with any person, vehicle or
       other conveyance. Id.

       The Court found that the duties imposed were not absolute, but were conditioned upon
proof that the motorist failed to act “in safety,” “with safety,” “safely,” and “reasonably and
prudently.” Id. And since proving that a driver failed to so act depended upon whether he failed
to abide by the “common-law test of the reasonably prudent man, a violation of these statutes
could not be negligence per se. Id. So simply put, if violation of the duty imposed by a statute is
dependent upon a jury determining if the act was unreasonable or imprudent, then the statute
cannot be one involving negligence per se. Id.
   SAMPLE SPECIAL EXCEPTIONS LANGUAGE FOR DEFENDANT’S ANSWER




                                           III.
                                   SPECIAL EXCEPTIONS

1.      Defendant objects and specially excepts to Paragraph VI of Plaintiff’s Original Petition in
which Plaintiff alleges two statutes as the basis for negligence per se allegations against
Defendant. Specifically, Defendant objects and specially excepts to each statute referred to in
Plaintiff’s Original Petition in that such statutes, which impose a conditional rather than absolute
duty, do not clearly define a specific type of conduct required by the public, but instead only
require a reasonable and prudent standard which, according to Texas case law, does not
constitute negligence per se.