PJC General Negligence 2022

N EGLIGENCE P ER S E

PJC 5.1

the wrong way on a street designated and signposted as one-way .”). This solution, however, should be used only when there is genuine and substantial doubt about the intent of a statute or regulation. A party should not be able to force the use of a sepa rate question, rather than a broad-form submission, simply by raising a weak claim that the violation might be interpreted as either ordinary or per se negligence. Rephrase if no claim of plaintiff’s negligence. If there is no claim that the plain tiff was negligent, the question should be— Did the negligence, if any, of Don Davis proximately cause the occurrence in question? Claims of both common-law negligence and violation of driving while intoxi cated statute. It is a penal offense to drive or operate a motor vehicle in a public place while intoxicated. Tex. Penal Code §49.04. The definition of “intoxication” includes— (A) not having the normal use of mental or physical faculties by rea son of the introduction of alcohol, a controlled substance, a drug, a danger ous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Tex. Penal Code § 49.01 (emphasis added). In criminal matters, the statutory definition “effectively abolished the former pre sumption of intoxication based on an alcohol concentration of 0.10% or more in a defendant’s body. Intoxication ... now means the presence of 0.10% or more alcohol concentration in a defendant’s body.” Forte v. State , 707 S.W.2d 89, 94 (Tex. Crim. App. 1986), overruled in part on other grounds by McCambridge v. State , 778 S.W.2d 70 (Tex. Crim. App. 1989). Note that the definition of “intoxication” has since been changed from 0.10% to 0.08%. Tex. Penal Code § 49.01. In civil matters, the statutory limitation on use of the presumption of intoxication has been repealed; thus the 1986 supreme court holding that presumption of intoxica tion could not be rendered into negligence per se because of this limitation is no longer good authority. Pool v. Ford Motor Co. , 715 S.W.2d 629, 631 (Tex. 1986); Acts 1995, 74th Leg., R.S., ch. 165, § 24 (S.B. 971), eff. Sept. 1, 1995. One court has said that “there is probably no acceptable excuse for driving while intoxicated” and that, in a “proper case,” the trial court could find negligence as a mat ter of law and so instruct the jury. Castro v. Hernandez-Davila , 694 S.W.2d 575, 578 (Tex. App.—Corpus Christi–Edinburg 1985, no writ). However, it has long been the rule that evidence of intoxication alone does not establish negligence but is merely an evidentiary fact to be considered in determining whether a person is guilty or not of performing some act or failing to perform some act that an ordinarily prudent person

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