Yowell, Judicial Discretion in Adopting Legislative Standards: Texas's Solution to the Problem of Negligence Per Se?

Baylor Law Review

Winter, 1997

49 Baylor L. Rev. 109

Judicial Discretion in Adopting Legislative Standards: Texas's Solution to the Problem of Negligence Per Se?

Paul Yowell

I. Introduction

The negligence per se doctrine requires courts to hold individuals negligent as a matter of law when they violate a statute. Though courts have widely accepted negligence per se, commentators have long criticized the doctrine for its potential to impose substantial liability for relatively minor statutory violations, and for its ceding of judicial responsibilities to the legislature. n1 This Article traces the development of negligence per se and discusses the main criticisms of the doctrine, but does not duplicate the comprehensive analysis other writers have given the subject. n2 The purpose of this Article is to call attention to an often-overlooked issue in negligence per se: whether courts have, or should have, discretion in choosing which legislative standards to adopt for negligence per se purposes.

II. Negligence Per Se: Historical Development and General Rules

After negligence became the primary basis for civil suits for damages in the latter half of the 19th century, courts began to face questions regarding how to apply statutory standards to the disputes. n3 At common law, a cause of action was based primarily on whether a defendant intentionally committed certain types of conduct, such as trespass or battery, and whether the plaintiff's damages were the direct consequence of that conduct. n4 With the advent of negligence theory, courts began to make a general inquiry into the reasonableness of the defendant's conduct. n5 Legislatures at this time were enacting new safety regulations to counter the growing number of accidents spawned by industrial and urban growth. Traditional criminal statutes also addressed conduct that was the subject of negligence actions. If a statute covered the conduct at issue in a lawsuit, many courts found it logical to substitute the statutory standard of conduct for the usual standard of reasonableness. n6 The result was the negligence per se doctrine, which holds that the violation of a statute is negligence as a matter of law.

Over time negligence per se became the majority rule in the United States. n7 Although the doctrine has variations, its key element is that it removes from the jury's consideration the question of reasonableness of the defendant's conduct when that conduct violates an applicable statute. n8 The jury still answers whether the defendant violated the statute and caused the accident, but the statute establishes the standard of care.

Negligence per se should be distinguished from two related doctrines. Courts in some states hold that the violation of a statute creates a presumption of negligence which the defendant must rebut in order to escape liability. n9 Other jurisdictions hold that the violation of a statute is only evidence of negligence. n10 These minority approaches are sometimes called types of negligence per se, but they are different from true negligence per se in one vital respect: both allow a defendant to prove that his conduct was reasonable, despite the failure to meet statutory standards.

In negligence per se jurisdictions, courts have limited the doctrine to certain types of statutes. The general rule is that a statute is applicable only if (1) it is intended to protect the class to which the plaintiff belongs and (2) it is intended to protect against the particular type of harm suffered by the plaintiff. n11 This Article refers to the test as the "standard test of applicability." It is often traced to the early English case of Gorris v. Scott, which involved a plaintiff who placed sheep in transit on an ocean voyage. n12 The defendant shipper failed to follow a statutory requirement to keep the sheep in pens and, as a result, a storm washed the sheep overboard. n13 The court, however, refused to find the defendant negligent per se. n14 The court found the statute inapplicable because it was intended to stop the spread of disease among animals, not to prevent animals from being swept into the sea. n15 Thus, the statute was not intended to protect against the particular type of harm suffered by the plaintiff.

Another limitation on negligence per se is that statutory violations may be excused for certain defined reasons. n16 The generally accepted excuses are listed in Section 288A of the Restatement (Second) of Torts as follows:

(a) the violation is reasonable because of the actor's inca pacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others. n17

The Restatement notes that this list is not exclusive, n18 but it is important to realize that in a true negligence per se jurisdiction, mere reasonableness will not constitute excuse. n19

In many jurisdictions, negligence per se applies not only to statutes, but also to agency regulations and to municipal ordinances; thus, when this Article refers to "statutes," the statement may be applicable to regulations and ordinances, and "legislature" may stand for an administrative agency or a municipal lawmaking body. Because negligence per se is normally used against defendants, that is how it is described in this Article; however, the doctrine can also limit or bar a plaintiff's recovery.

III. The Problem of Negligence Per Se

The rationale underlying negligence per se is that reasonable men do not violate the law and to suggest that they do would be an affront to the legislature. This thesis was expounded by Professor Ezra Thayer in his seminal 1914 article on negligence per se, Public Wrong and Private Action: n20

And when eminent courts . . . leave the question of negligence as a fact to the jury, they are doing nothing less than informing that body that it may properly stamp with approval, as reasonable conduct, the action of one who has assumed to place his own foresight above that of the legislature in respect of the very danger which it was legislating to prevent. n21

The legislature has greater authority than courts to fashion norms of conduct because it is backed by a broader societal consensus and by superior investigative and deliberative powers. n22 Professor Thayer would not hear of a "reasonable" violation of the law:

It is an unjust reproach to our old friend the ordinary prudent man to suppose that he would [violate an ordinance]. It would mean changing his nature, and giving over the very traits which brought him into existence . . . . He would be the first to admit that he should break the ordinance at his peril. n23

With these arguments, Professor Thayer formulated the classic defense of negligence per se, and his article is still cited by courts and discussed by commentators. n24

The critics of negligence per se directly attack Professor Thayer's basic premises. They argue that violating a statute is not always unreasonable n25 because the tort standard of reasonableness is often different from the criteria by which legislatures decide to prohibit conduct. Therefore, a court's refusal to hold that violating a statute is negligent per se is no offense to the legislature, and it may be more in keeping with legislative intent. As one author stated:

Conduct which a legislature might consider culpable enough to make subject to criminal penalty is not necessarily conduct which either a court or the legislature would wish to make compensable. Wholly different considerations go into the determination of whether society needs to be protected through the use of criminal sanctions for certain conduct, and whether that same conduct should be made subject to a civil action by the harmed party. n26

This observation is particularly true for strict liability statutes. The conduct proscribed by these statutes is often malum prohibitum; n27 it is not inherently wrong or inherently unreasonable to drive 60 m.p.h. where the posted limit is 55 m.p.h. or to park in a loading zone. In the courts, however, conduct that is not malum in se n28 may become negligent per se. The legislature may have chosen to punish the conduct with only a small fine, but under negligence per se, defendants face "potentially ruinous civil liability . . . for the minor infraction of petty criminal regulations." n29 Should a court conclusively deem a driver negligent merely because he was exceeding the speed limit by five miles per hour when an accident occurred? For this most common of potential negligence per se cases, Texas has provided by statute that speeding is not conclusive of negligence. n30 But why should the same rule not apply to the failure to use a turn signal or other minor statutory violations? Clarence Morris, an early critic of Professor Thayer, summarized the problem: "When criminal legislation imposes punishment in the absence of fault, use of the statutory proscription as a new and more exact standard for judging negligence transforms liability-only-for-fault into liability-without-fault." n31

Critics argue that the courts, in their zeal to defer to the legislature, not only overstep the bounds of legislative intent but also ignore the judicial role in negligence cases. In ordinary negligence cases, the judge determines the existence and scope of the defendant's duty as a matter of law, n32 and occasionally a court must decide whether to modify, extend, or even discard the common law duty rule. n33 Negligence per se tempts courts to ignore the common law and look only to the statute to determine whether the defendant owed the plaintiff a duty. n34 In ordinary negligence cases, the jury answers questions of breach of duty and foreseeability of harm. n35 When the jury foreman writes "yes" or "no" on the verdict sheet, he answers the question at the heart of the negligence action--whether the defendant's conduct, considering the totality of the circumstances, satisfied society's reasonable expectations. In negligence per se, the jury simply answers whether the defendant violated the statute and whether the conduct was the cause in fact of the accident. n36 The answer to the question of reasonableness under the circumstances is foreordained by the legislature. It is perhaps more accurate to say that this question is never answered because negligence per se "places responsibilities on a legislature that could not possibly conceive of all cases to which its proscription might apply and that has not provided for civil liability, and that, therefore, surely has not considered proper limitations and excuses." n37 Negligence per se ties the judge's hands and muffles the jury's voice, but the court is bound by rules of its own making. Legislatures did not force the adoption of negligence per se; courts have developed it of their own accord.

The results have in some cases been disturbing. A Wisconsin defendant followed traffic directions marked on the road but still violated the law because the marked directions were inconsistent with an ordinance on the books. n38 The court found the defendant negligent per se for violating the ordinance. n39 In Texas, a driver came upon a signal that evidently was unique in the state's history of traffic control, a red arrow. n40 An ordinance established that the redness of the signal meant stop, but the confused driver thought the arrow meant go. n41 While turning, she was hit by a car that had a green light. n42 The jury found the defendant's conduct was not negligent under the common law standard. n43 The court of appeals, however, overturned the jury finding, holding that the defendant was negligent as a matter of law for violating the ordinance on the red arrow. n44 This result would have remained intact save for a creative interpretation of the doctrine of excuse by the Texas Supreme Court, which reinstated the jury's finding. n45

Despite such examples, disturbing cases are more rare than one might expect after considering the theoretical criticism of negligence per se. As one critic admitted, "The marvel is that the doctrine of negligence per se usually works smoothly, not that it occasionally does not." n46 One reason for this is that courts have been adept at using statutory construction to find that a defendant did not really violate the statute at issue. n47 Another reason is the courts' willingness to interpret loosely the doctrine of excuse. n48 The critics argue, however, that these are theoretically unsound methods built upon what is already a shaky edifice and they urge alternative ways of handling civil liability for statutory violations.

Some commentators recommend treating violations of statutes as evidence of negligence. n49 Others favor the presumption of negligence approach, in which a defendant who has violated a statute has the burden to prove that his conduct was reasonable. n50 Another school argues that when courts impose civil liability for violating a criminal statute, the true effect is to create a new cause of action. n51 This group thinks courts should acknowledge the judicial innovation and justify it through a discussion of the policy issues rather than trying to fit their reasoning into the negligence framework. n52 This Article makes no conclusion as to which of these approaches is the most theoretically sound, nor does it defend the traditional doctrine of negligence per se. Instead, this Article proposes that courts in negligence per se jurisdictions exercise discretion in adopting legislative standards. This is an aspect of negligence per se which is often overlooked, but which has the potential for resolving some of the problems discussed in this section.

IV.Judicial Discretion in Adopting Legislative Standards of Care

If a statute passes the standard test of applicability for negligence per se--if it is intended to protect the class to which the plaintiff belongs against the type of harm suffered--courts usually adopt it as the standard of care without further discussion. But the question remains whether this test is the only criterion for adopting a legislative standard, or whether courts may decline to apply negligence per se for other reasons as well. Both courts and commentators have given scant attention to this issue. n53 The most comprehensive treatment of negligence per se in recent years states simply that courts "must" adopt a statute if it meets the test of applicability. n54 The author relegates discussion of the idea that courts may have discretion in this matter to a footnote. n55 This lack of interest is surprising because the issue is prominent in the description of negligence per se in Section 286 of the Restatement (Second) of Torts: "The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to [satisfy the test of applicability]." n56 Under this formulation, the standard test of applicability is just one of the qualifications for the adoption of a statute rather than the sole inquiry.

In the commentary, the Restatement confirms the discretionary nature of judicial adoption of legislative standards:

The court is under no compulsion to accept [the legislation] as defining any standard for purposes of a tort action

. . . .

. . . The decision to adopt the standard is purely a judicial one, for the court to make. When the court does adopt the legislative standard, it is acting to further the general purpose which it finds in the legislation, and not because it is in any way required to do so. n57

Though it may seem like an innovation, the Restatement position is merely a reflection of the courts' common law authority over the law of negligence. The courts created negligence per se in an attempt to recognize legislative policy within the existing negligence action--not out of an obligation to provide a civil damages remedy for every violation of a statute. By adopting the Restatement position on judicial discretion, courts can maintain the tradition of negligence per se while preventing the inequitable results that some statutes threaten to impose.

The Restatement contemplates a limited use of the discretionary power under consideration:

Obviously cases will be relatively infrequent in which legislation directed to the safety of persons or property will be so obsolete, or so unreasonable, or for some other reason inapplicable to the case, that the court will take this position; but where the situation calls for it, the court is free to do so. n58

If courts exercise unlimited discretion in this area, or if they reject each statutory standard that merely threatens to work an uncomfortable result, then negligence per se might be swallowed by its exceptions. To maintain the core of negligence per se, courts must explain the characteristics of a statute which make it unsuitable as a legislative standard of care. n59 The Restatement lists obsolescence and unreasonableness. When ordinances like a six-mile-per-hour speed limit remain on the books, the example given by the Restatement, n60 courts may safely classify them as obsolete with no affront to the legislature. On the other hand, passing upon a statute's intrinsic reasonableness is an activity which courts should undertake with great caution. The Restatement speaks of a statute which is "so unreasonable" that it should not be used as a standard of negligence. n61 Merely finding a statute unreasonable should not give a court license to reject it when acting under negligence per se; the very basis of the doctrine is that the legislature is the better judge of what is reasonable conduct.

The Restatement does not mention obscurity, but this related quality may be a proper reason for not applying negligence per se to a statute. n62 For example, the ordinance governing the red arrow in Sparkman v. Maxwell was neither obsolete nor totally unreasonable, yet the jury found the defendant was not negligent in violating it. n63 Courts may allow juries to reach such results by holding that such statutes are so obscure as to be unfit for use in negligence per se. In addition to obscurity, obsolescence, and unreasonableness, courts may develop other reasons for not adopting a statute as a standard of care.

The test of whether a statute is intended to protect a plaintiff from the type of harm suffered raises another issue related to judicial discretion: the court's obligation to apply common law rules of duty in negligence cases. This issue is particularly important when statutes create duties where the common law recognizes no duty. New duties generally arise when a statute imposes an affirmative obligation to act, such as a requirement for drivers to stop and render aid. n64 The common law, of course, imposed no general liability on omissions. New duties may also arise when statutes extend the scope of liability recognized by the common law, such as laws making general contractors responsible for the safety of their subcontractors' employees. n65

In ordinary negligence, the question of duty is preliminary to the issue of whether the defendant violated the standard of care. n66 Without a duty there is no cause of action. The basic doctrine of negligence per se does not purport to change the rules of duty, but the standard test of statutory applicability can lead a court to ignore those rules, especially when a statute creates a new duty. If a court concludes that the statute was intended to protect the plaintiff from the harm suffered, that is similar to holding that the defendant owed the plaintiff a duty not to violate the statute. n67 But a court should not use statutory duty as a substitute for common law duty. A statute that is intended to protect the plaintiff may lead the court to consider whether it should change the law of duty. But if the court makes such a change, it should consider the policy issues and perform the requisite analysis for changes in the common law. n68

V. Negligence Per Se and Judicial Discretion in Texas

A. Brief Overview of Texas Law

A series of cases dating back to 1895 has established negligence per se as the law of Texas, with only minor variations on the majority rules. n69 Texas has adopted the standard test of statutory applicability n70 and the Restatement categories of excusable violations. n71 For a defendant to be liable for negligence per se, Texas requires the jury to find proximate cause, unlike some states where the jury answers only cause in fact. n72

B. Supreme Court Discussions of Judicial Discretion in Negligence Per Se

May a Texas court decline to adopt a statute that meets the standard test of applicability for negligence per se? The answer must begin with the Texas Supreme Court's general descriptions of negligence per se. First, the court has stated that the boundaries of negligence per se are in the hands of the court rather than the legislature. In Carter v. William Sommerville & Son, Inc., the court held that "it is well-established that the mere fact that the Legislature adopts a criminal statute does not mean this court must accept it as a standard for civil liability." n73 In Rudes v. Gottschalk, n74 a case the Restatement cites as authority for its position on court discretion in the adoption of statutes, n75 the supreme court stated:

Fundamentally, however, the application of proscriptions contained in criminal statutes as standards for determining tort liability stems from the judicial action of civil courts . . . .

As the power of adopting or rejecting standards rests with civil courts, we may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for our purposes. n76

Despite the breadth of discretion suggested by these quotes, other discussions of negligence per se seem to draw a narrower view, at least upon first inquiry.

When the supreme court has described negligence per se, it has used different formulations for the test of when to adopt a statutory standard of conduct. In many cases, it appears that if a statute meets the standard test of applicability, a court must adopt it for negligence per se purposes. For example, in Moughon v. Wolf, the court stated, "the unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured party belongs." n77 This language may be contrasted to Carter v. William Sommerville & Son, Inc., in which the court used wording implying that there are other conditions for adopting a statute: "The courts will not adopt a statute as a standard for negligence unless one of the purposes of the statute is to protect the class of persons to which the injured party belongs from the hazard involved in the particular case." n78 In another variation, the court in Mundy v. Prie-Slaughter Motor Co. stated simply that applying negligence per se "depends" on whether the standard test has been met. n79 In a case one year later, citing Mundy, the supreme court added qualifying language: "[Adoption of a statute] depends at least in part on whether a purpose of the ordinance was to afford protection against the hazard involved in the particular case." n80 Adding to the confusion, a number of Texas courts have cited to Section 286 of the Restatement, n81 which uses the discretionary language that a court "may adopt" a statute. n82 None, however, has done so in a context that clearly affirms the court's discretion in adopting statutes.

The most commonly cited formulation of negligence per se follows the example in Moughon, which implies that the standard test of applicability is the sole inquiry for deciding whether to adopt a statute. n83 This line of cases, however, need not be considered as contradicting cases which use more discretionary language, such as Carter and Rudes. n84 As the court explained in Rudes:

In the usual negligence per se case . . . we are concerned with alleged conduct which would be considered substandard even in the absence of a statute. We adopt the statutory test rather than that of the ordinarily prudent man as the more accurate one to determine negligence because the Legislature, by reason of its organization and investigating processes, is generally in a better position to establish such tests than are judicial tribunals. n85

This quote indicates that there is a lingering question about alleged conduct which, if it were not prohibited by statute, would not be considered substandard. The court avoided stating that the legislature is always in a better position to determine whether conduct is reasonable. As the Restatement indicated, however, those cases in which the legislative standard is unfit for negligence per se purposes are rare. n86 Thus, courts tend to become comfortable reciting only the standard test of whether a statute is intended to protect the plaintiff from the harm suffered. They often ignore the fact that other valid reasons for not adopting a statute may arise in particular cases, without necessarily discounting that idea.

C. Appellate Decisions Exercising Discretion Not to Adopt Statutes

Recent Texas appellate cases have involved statutes that seemed inappropriate for use in negligence per se. In Fought v. Solce, a physician failed to respond to a request to come to the hospital and treat a patient. n87 The plaintiff alleged negligence per se under the patient-dumping statute, which makes it illegal to deny emergency medical services for discriminatory reasons, including the patient's ability to pay. n88 In Scott v. Butcher, the defendant was accused of sexually abusing a child. n89 The plaintiff sued for damages, alleging negligence for violation of new sections in the Family Code that require anyone who has cause to believe of the existence of child abuse to report it. n90 The courts in both of these cases, using the same analysis, refused to apply negligence per se to the statutes at issue. Each court cited Rudes and Carter for the proposition that the decision of whether to adopt a legislative standard lies within the discretion of the court. n91 The courts then turned to common law rules of duty. Fought relied on the rule that physicians are liable for negligence only when a physician-patient relationship exists. n92 Scott recognized that the common law did not require non-family members to report abuse and thus refused to apply the statute to the defendant. n93 Childers v. A.S., n94 another case alleging violations of the Family Code reporting requirement for abuse, also refused to adopt the statute for negligence per se, relying on Scott. n95

None of these three cases ever reached the question of whether the statute was intended to protect the plaintiff from the type of harm suffered. If they had relied on that test instead of common law duty, then these courts might have reached a different result. The patient-dumping statute in Fought was clearly intended to protect patients from a physician's refusal to treat them, and the reporting statute in Scott and Childers seems intended to protect children from abuse. These cases thus imply that the standard test of applicability does not subsume the court's obligation to apply common law rules of duty. By relying on the supreme court's earlier statements on judicial discretion, these cases also affirm the limited nature of negligence per se and the court's control over it.

D. The Example of El Chico Corp. v. Poole

The analysis in these appellate cases should be compared to the Texas Supreme Court's decision in El Chico Corp. v. Poole, in which the plaintiffs alleged negligence and negligence per se against a restaurant that served drinks to an already intoxicated patron in violation of Texas's Dram Shop act. n96 The court began its discussion by reciting the common law rule that a purveyor of alcoholic beverages was not liable to third parties injured as a result of a patron's intoxication. n97 Ultimately the court decided to reject the rule and expand the common law duty, but only after a detailed analysis. n98 The court noted the historical reasons for the rule and its status in all 50 states. n99 The court identified the purpose and foundation of the concept of duty and explained the policy reasons for modifying this particular instance of it, relying on society's growing awareness of the relationship between intoxication and vehicle accidents, as well as statistical evidence of such accidents. n100 Throughout the analysis the court relied on analogous precedent and common law principles, such as foreseeability, to justify the change. n101

It was only after changing the law of duty that the court turned to negligence per se--an analysis which it said was "separate and apart" from the common law negligence analysis. n102 The court found that the statute was intended to protect the plaintiffs, parents whose son had been killed by a driver who had become drunk at the defendant's bar. n103 Accordingly, the court concluded that the violation of the statute was negligent per se. n104 Like many other cases, however, the court did not explicitly acknowledge whether it was bound to apply negligence per se merely because the statute was intended to protect the plaintiff from the harm suffered, or whether the determination of common law duty was a prerequisite. If the court did consider the standard test to be the sole criterion for applying negligence per se, the following inferences could be made:

(1) The court's careful, extensively reasoned decision to change the common law of duty was irrelevant to the result. Finding a statutory duty would have compelled the same result even if the court had left the common law alone.

(2) Each of the appellate decisions discussed in the previous section was decided wrongly. Instead of relying on common law rules of duty, the courts should have been applying the test of whether the statute was intended to protect the plaintiff from the harm suffered.

(3) The standard test of statutory applicability supersedes the statements in Rudes and Carter that courts have discretion to decide which legislative standards to adopt in negligence actions.

VI. Conclusion

Negligence per se arose historically within the confines of ordinary negligence: if a given set of facts gave rise to an action for negligence, the added fact that the defendant violated a statute meant that his conduct was negligent in itself, negligent per se. To limit the effects of this doctrine, courts devised the rule that legislative standards would be adopted only if they are intended to protect the plaintiff from the type of harm suffered. Today courts often use this test as the only criterion for applying negligence per se to a statute. In cases such as El Chico v. Poole and Moughon v. Wolf, the Texas Supreme Court has created the impression that this test may override common law rules of duty or any other reason for not adopting a statute as a standard of care. n105 If this is the intended meaning of these cases then negligence per se is no longer simply a rule to be applied within negligence. Instead, it is a separate and distinct cause of action which may be invoked for the violation of almost any safety-oriented statute or regulation. But it is unclear whether the supreme court intended to make the standard test of applicability the sole criterion for applying negligence per se. The court has never overturned its earlier rule that courts retain broad discretion over whether to adopt a statute as a standard of care, expressed most clearly in Rudes v. Gottschalk and Carter v. William Sommerville & Son, Inc. n106 And the court has never held that a statutory duty is always a valid substitute for common law duty.

Recent Texas appellate decisions have revived the principle of judicial discretion, relying on Rudes and Carter to hold that negligence per se is inappropriate for statutes that imposed duties not recognized in the common law. n107 When the opportunity arises, the Texas Supreme Court should affirm the principle of judicial discretion and the appellate courts' applications of it. Courts should be free to reject negligence per se for statutes that are obsolete, obscure, unreasonable, or for some other reason unfit as a standard of care. Common law duty rules should be changed only when policy compels it, not merely because the legislature has created a new statutory duty. With discretionary authority in these matters, courts can maintain their proper authority over common law negligence and avoid the inequitable results that could result from applying negligence per se to some statutes.

FOOTNOTES:

n1 See generally Caroline Forell, The Statutory Duty Action in Tort: A Statutory/Common Law Hybrid, 23 Ind. L. Rev. 781, 795 (1990); David P. Leonard, The Application of Criminal Legislation to Negligence Cases: A Reexamination, 23 Santa Clara L. Rev. 427 (1983); Charles L.B. Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn. L. Rev. 361 (1932); Clarence Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum. L. Rev. 21 (1949). But see Ezra Thayer, Public Wrong and Private Action, 27 Harv. L. Rev. 314 (1914) (defending negligence per se).

n2 The most comprehensive survey of negligence per se in recent years is David Leonard's 1983 article, The Application of Criminal Legislation to Negligence Cases: A Reexamination, supra note 1.

n3 See, e.g., Osborne v. McMasters, 41 N.W. 543 (Minn. 1889) (early negligence per se case).

n4 See Leonard, supra note 1, at 450-51.

n5 See id.

n6 See Thayer, supra note 1, at 318-19.

n7 See Bauman v. Crawford, 704 P.2d 1181, 1187 (Wash. 1985); Leonard, supra note 1, at 450 & n.98; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts <sect> 36, at 230 (5th ed. 1984) (stating that negligence per se is probably the majority rule).

n8 See, e.g., Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920) (opinion by Cardozo, J.):

We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. . . . By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.

n9 See Leonard, supra note 1, at 446-48 (identifying two different types of presumption theories that some states use for negligence per se purposes).

n10 See Keeton, supra note 7, <sect> 36, at 230; Leonard, supra note 1, at 442-46 (distinguishing the "mere evidence" from the "prima facie evidence" approaches).

n11 See Keeton, supra note 7, <sect> 36, at 229-30; Leonard, supra note 1, at 434-35.

n12 9 L.R.-Ex. 125 (1874) (discussed in Leonard, supra note 1, at 441).

n13 See id. at 128.

n14 See id. at 130.

n15 See id.

n16 See Keeton, supra note 7, at 227-29; Morris, supra note 1, at 32-33.

n17 Restatement (Second) of Torts <sect> 288A (1965).

n18 Id. <sect> 288A cmt. a.

n19 See Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex. 1972).

n20 Thayer, supra note 1; see Keeton, supra note 7, <sect> 36, at 222.

n21 Thayer, supra note 1, at 322 (footnotes omitted).

n22 See Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959); Leonard, supra note 1, at 434; Morris, supra note 1, at 47.

n23 Thayer, supra note 1, at 326.

n24 See, e.g., Marquay v. Eno, 662 A.2d 272, 277 (N.H. 1995).

n25 See Morris, supra note 1, at 29.

n26 Leonard, supra note 1, at 466.

n27 See Black's Law Dictionary 960 (6th ed. 1990).

n28 See id. at 959.

n29 Morris, supra note 1, at 23.

n30 See Tex. Transp. Code Ann. <sect> 542.206 (Vernon Supp. 1997).

n31 Morris, supra note 1, at 28.

n32 See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 101 (N.Y. 1928); Thomas C. Galligan, Jr., A Primer on the Patterns of Negligence, 53 La. L. Rev. 1509, 1510-11 (1993).

n33 See Leonard, supra note 1, at 453-54 (identifying different factors a judge may take into account in determining what duty exists).

n34 See Galligan, supra note 32, at 1515.

n35 See Galligan, supra note 32, at 1513; Leonard, supra note 1, at 456.

n36 See Galligan, supra note 32, at 1519. The question of foreseeability of harm likewise is not given to the jury in negligence per se, because the conclusion that a statute was intended to protect against the type of harm suffered by the plaintiff means that the defendant should have foreseen the harm that would result. See Forell, supra note 1, at 795; cf. Galligan, supra note 32, at 1517.

n37 Morris, supra note 1, at 29.

n38 See Day v. Pauly, 202 N.W. 363, 365 (Wis. 1925).

n39 See id.

n40 See Sparkman v. Maxwell, 519 S.W.2d 852, 856 (Tex. 1975).

n41 See id.

n42 See id. at 854.

n43 See id. at 856.

n44 See id.

n45 See id. at 857.

n46 Morris, supra note 1, at 31.

n47 See id. at 29-32.

n48 See id. at 32-33.

n49 See Lowndes, supra note 1, at 376-77.

n50 See Leonard, supra note 1, at 482-89.

n51 See Forell, supra note 1, at 799-800; see also Restatement (Second) of Torts <sect> 874A (describing implied causes of action).

n52 See Forell, supra note 1, at 800.

n53 See Morris, supra note 1, at 25.

But few, if any, courts have expressly and clearly recognized the general proposition that criminal legislation is neither binding nor irrelevant to the scope of civil liability, and that civil courts have the problem of discriminating on a policy basis between (a) those cases in which civil liability should be extended by analogy to criminal law, and (b) those cases in which it should remain unchanged even though the defendant has run afoul of the criminal law.

Id. See also Keeton, et al., supra note 7, <sect> 36, at 229-30.

n54 Leonard, supra note 1, at 462 ("Once a court finds that a statute establishes a standard of care, the court must adopt that statute in place of the common law duty of care which would otherwise have been applicable to the case.") (footnote omitted).

n55 See Leonard, supra note 1, at 450 n.98.

n56 Restatement (Second) of Torts <sect> 286 (1965). The Restatement version of the test for applicability is an expanded version of the standard test cited by most courts. Under the Restatement, a statute may be adopted if its purpose is:

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(d) to protect that interest against the particular hazard from which the harm results.

Id.

n57 Id. <sect> 286 cmt. d.

n58 Id.

n59 See id.

n60 Id. The comment is based on Stevens v. Luther, 180 N.W. 87 (Neb. 1920).

n61 Restatement (Second) of Torts <sect> 286 cmt. d (emphasis added).

n62 See Clarence Morris, The Role of Administrative Safety Measures in Negligence Actions, 28 Tex. L. Rev. 143, 151 (1949).

n63 See supra notes 40-45 and accompanying text.

n64 See Brooks v. E.J. Willig Truck Transp. Co., 255 P.2d 802, 808-09 (Cal. 1953).

n65 See Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799, 804-05 (5th Cir. 1983) (holding that duties of general contractor under OSHA extend to all employees at the workplace); accord Marshall v. Knutson Constr. Co., 566 F.2d 596, 599 (8th Cir. 1977). But see Brennan v. Billes & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974).

n66 See Morris, supra note 1, at 27.

n67 See Galligan, supra note 32, at 1515.

n68 See infra notes 96-104 and accompanying text (discussing the Texas Supreme Court's decision to change the common law of duty in El Chico Corp. v. Poole, 732 S.W.2d 306, 309-12 (Tex. 1987)).

n69 See San Antonio & A.P. Ry. Co. v. Bowles, 32 S.W. 880 (Tex. 1895). In this railroad crossing case, the trial court had submitted a jury issue that expressly allowed the jury to find the defendant's conduct non-negligent even though it violated a statute requiring the train to stop at a crossing. The Texas Supreme Court reversed, holding:

When the employees of a railroad company fail to obey the statute in its plain and mandatory provisions, from which failure injury arises to person or property, there being no contributory negligence by the injured party, the railroad must be held responsible for the consequences of such negligence, without regard to the question as to whether the act was prudent or imprudent. Being contrary to the statute, it is unlawful, and therefore, by law, it is negligent per se.

Id. at 883. Texas's jury charge practice has repercussions for negligence per se, which are extremely important but beyond the scope of this Article. For background see Frank Bivin Murchison, Negligence Per Se and Excuse for a Statutory Violation in Texas, 5 St. Mary's L.J. 552 (1973); Jack Ratliff, Negligence Per Se in Texas: An Analysis of Statutory Excuse and Related Doctrines with Proposed Special Issues and Instructions, 41 Tex. L. Rev. 104 (1962). For current usage see Caskey v. Bradley, 773 S.W.2d 735, 737-38 (Tex. App.--Fort Worth 1989, no writ), and 1 State Bar of Texas, Texas Pattern Jury Charges <sect> 5.01 (2d ed. 1987).

n70 See, e.g., Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 277 (Tex. 1979); Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977).

n71 See Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex. 1972).

n72 See American Statesman, 552 S.W.2d at 103; East Tex. Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 616 (1949); cf. Galligan, supra note 32, at 1517-18.

n73 584 S.W.2d 274, 278 (Tex. 1979).

n74 324 S.W.2d 201 (Tex. 1959).

n75 Restatement (Second) of Torts <sect> 286 (1965). Rudes was also cited by the Fifth Circuit as an example of Texas's discretionary approach to statutory standards. United States v. Sawyer, 4 F.3d 369, 377 (5th Cir. 1993) ("Texas courts have consistently recognized that, given a duty, they may adopt a statute as enunciating the appropriate standard of conduct under that duty. It is important to note, however, that Texas courts are under no obligation to do so." (citations omitted)).

n76 Rudes, 324 S.W.2d at 204-05. The court follows this quotation with a cite to a leading article by Professor Clarence Morris that criticized the rigidity of Professor Thayer's conception of negligence per se. See id. (citing Morris, supra note 1, at 25). Another court cited both Thayer's and Morris's articles and called Morris's "the best considered of these treatments," quoting the author at length on the dangers of a rigid doctrine of negligence per se. Phoenix Ref. Co. v. Powell, 251 S.W.2d 892, 895 (Tex. Civ. App.--San Antonio 1952, writ ref'd n.r.e.).

n77 576 S.W.2d 603, 604 (Tex. 1978) (emphasis added).

n78 584 S.W.2d 274, 278 (Tex. 1979) (emphasis added).

n79 146 Tex. 314, 206 S.W.2d 587, 590 (1948).

n80 East Tex. Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615 (1949) (emphasis added).

n81 See, e.g., El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987).

n82 Restatement (Second) of Torts <sect> 286 (1965).

n83 See, e.g., Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985); Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977).

n84 See Morris, supra note 1, at 28-29.

n85 Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959) (emphasis added).

n86 See Restatement (Second) of Torts <sect> 286 cmt. d. (1965).

n87 821 S.W.2d 218, 219 (Tex. App.--Houston [1st Dist.] 1991, writ denied).

n88 See id. at 220.

n89 906 S.W.2d 16, 19 (Tex. App.--Tyler 1994), rev'd on other grounds, 906 S.W.2d 14 (Tex. 1995).

n90 See id. at 20.

n91 See Scott, 906 S.W.2d at 20; Fought, 821 S.W.2d at 221.

n92 821 S.W.2d at 221-22.

n93 906 S.W.2d at 20.

n94 909 S.W.2d 282 (Tex. App.--Fort Worth 1995, no writ).

n95 See id. at 289-90.

n96 732 S.W.2d 306, 309 (Tex. 1987).

n97 See id. at 309.

n98 See id. at 309-12.

n99 See id. at 310 & n.1.

n100 See id. at 310-11.

n101 See id. at 309-12.

n102 Id. at 312.

n103 See id.

n104 See id.

n105 See infra Part V.B., D.

n106 See infra Part V.C.

n107 See infra Part V.C.