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41 Tex. L. Rev. 104 (1962-1963)
Negligence Per Se in Texas: An Analysis of Statutory Excuse and Related Doctrines with Proposed Special Issues and Instructions

handle is hein.journals/tlr41 and id is 122 raw text is: COMMENT Negligence Per Se in Texas: An Analysis of Statutory Excuse and Related Doctrines With Proposed Special Issues and Instructions JACK RATLIFF* Like the mythical Hydra,' the many-headed problem of statutory negligence must be approached with caution. This comment does not purport to dispose of the multitude of old heads which have long intimi- dated tort lawyers; it does, however, attempt to explain some of the new ones which are changing the appearance of this troublesome creature. I. HISTORICAL BACKGROUND The concept of statutory negligence or negligence per se seems to have originated in the English case of Gorris v. Scott.2 This case established the proposition that violation of a statute results in a conclusive presump- tion of negligence if (1) the injury complained of is of a type which the statute seeks to prevent, and (2) the injury is to a member or members of the class of persons which the statute is intended to protect.3 Although * Member of Dallas bar. 1An indestructible, multi-headed monster which grew two new heads for each one chopped off. See BULLFINcH, THE AGE op FABLE 146 (Heritage ed. 1946). 2 L.R. 9 Ex. 125 (1874). Vessel operator was in violation of an order requiring that certain battens and pens be provided for animals in transit; plaintiff's sheep were washed overboard. Held: no recovery. Object of the order was prevention of disease, not protection of animals from the sea. See Morris, The Role of Criminal Statutes in Negli- gence Actions, 49 CoLum. L. lyv. 21 (1949); Thayer, Public Wrong and Private Action, 27 HInv. L. REv. 317 (1914). 3 Dean Leon Green has suggested that the two Gorris requirements broadly embody the foreseeability which is treated in Texas as one element of proximate cause and in most other jurisdictions as a part of negligence. Thus, a Texas violation seemingly must meet the Gorris requirements twice: once when the judge decides whether the violation involved is negligence per se in relation to the resultant damage and again when the jury decides whether the violation was a proximate cause of the damage. To avoid ap- plying the same test to the character of the injury and the injured under the Gorris rule and under proximate cause, some Texas courts attempt to eliminate the apparent dupli- cation by saying the violation is negligence per se but retain the proximate cause fore- seeability test. See, e.g., Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); Mundy v. Pixie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947); Brown v.

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