Texas personal injury cases, such as car accidents and slip and falls, often boil down to one key factor — negligence. Although negligence is a singular aspect of an injury claim, it’s not a black and white issue. Because several types of negligence exist, understanding how it works and determining which one to use can be confusing. Thankfully, our Houston personal injury attorneys are here to explain what negligence is and how it can apply in your accident case.

What is negligence in a Texas personal injury case?

Negligence specifically refers to a person’s breach of duty of care. Breaching a duty of care means one’s failure to act or behave responsibly in a situation, causing injury or harm to another person. When you’re involved in an injury claim, you cannot simply say the other person is at fault. To be successful at any Texas personal injury case, you and your lawyer must prove the other party was negligent.

Elements of negligence

According to Texas law, the five elements of negligence include:

  1. Duty: The other party owed you a duty of care.
  2. Breach: The other party breached the duty of care.
  3. Cause in fact: The breach of the duty of care resulted in your injuries.
  4. Proximate cause:The breach primarily caused your injuries.
  5. Damages: Harm was caused as a result of the breach.


Every Texas injury claim must meet all the elements of negligence. If not, your claim will fail. A quality Houston personal injury lawyer will help you determine whether your claim meets each element of negligence required. 

Different types of negligence in a Texas personal injury case

Besides the five elements of negligence, there are also various types of negligence discussed below.

Comparative negligence

Under comparative negligence, parties share fault. Let’s say a doctor prescribed a medication that caused a reaction in a patient. Because the patient didn’t follow the medicine label with instructions, the doctor and the patient are responsible for the patient’s injury. 

Comparative negligence comes in specific forms:

  • Contributory negligence: When plaintiffs contribute to the incident, they cannot recover damages. 
  • Pure comparative negligence: Plaintiffs can recover based on their assigned fault. If a plaintiff is 99% negligent, he or she can claim damages for the 1% not responsible for. 
  • Modified comparative negligence: Plaintiffs can only recover as long as they are under 50% at fault. 


Texas courts use modified comparative negligence to distribute fault and award compensation. As such, you can partially recover damages from the other party, even if you contributed to the accident. The court will simply reduce your award amount equivalent to your percentage of fault. 

There’s just one catch: with Texas’ 51 percent bar rule, you must be 50% or less responsible for the accident. A 51% fault will leave you with $0. Essentially, you cannot be more than halfway responsible for an accident and still get money for your damages.

Gross negligence

drunk driver displaying gross negligence
If you were injured in an accident caused by a drunk driver, you may be entitled to recover damages due to gross negligence.

Gross negligence is a higher level of negligence. It’s more than an oversight of care, it’s the deliberate, reckless behavior that has no regard for anyone’s safety or rights. 

Examples of gross negligence include:

  • Drunk driving: A drunk driver hops in the car, drives down the street and causes an accident. The driver knew it was dangerous to drive the vehicle while intoxicated, but instead tried to drive home anyway. 


  • Establishment owner: A gym owner knew a treadmill was broken in the gym, but did not notify gym members or employees that the treadmill shouldn’t be used. A gym member used the treadmill and was injured. The gym member can sue for gross negligence because the gym owner neglected to take action to prevent someone from getting hurt.


  • Street racing: Illegal street racing is becoming more widespread in Houston, and the state of Texas. Street racers are more concerned with their own thrills and adrenaline rush than the catastrophes they impose on innocent drivers.


When gross negligence applies, Texas judges may award a victim an additional recovery amount called punitive damages. This is a punishment for a defendant’s gross negligence, and an attempt to show the community that reckless behavior is not tolerated.

Our Houston personal injury attorneys can help you prove negligence

You can’t rely on insurance companies to do the right thing and treat you fairly; their goal is to pay you as little as possible. Working with an experienced Houston personal injury attorney can be a great advantage in proving negligence and getting full compensation. If you think your accident may have been caused by any type of negligence, contact Johnson Garcia LLP online or give us a call for a free consultation today.