PJC General Negligence 2022

N EGLIGENCE P ER S E

PJC 5.2

PJC 5.2

Negligence Per Se and Common-Law Negligence— Excuse

The law forbids driving the wrong way on a street designated and signposted as one-way . A failure to comply with this law is negligence in itself, unless excused. A failure to comply is excused if the driver was incapacitated by a heart attack immediately before the accident . QUESTION ______ Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer “Yes” or “No” for each of the following: 1. Don Davis _______________ 2. Paul Payne _______________ COMMENT When to use. PJC 5.2 should be given if there is evidence of a permissible excuse for violating a negligence per se standard in a case involving claims of both common law negligence and negligence per se. Like PJC 5.1, PJC 5.2 includes both an instruc tion—to be given immediately after the definition of “negligence”—and a broad-form question jointly submitting negligence and proximate cause. Recognized excuses. In Impson v. Structural Metals, Inc. , 487 S.W.2d 694, 696 (Tex. 1972), the court adopted the formulation of the Restatement (Second) of Torts § 288A (1965) concerning negligence per se and excuse: (a) the violation is reasonable because of the actor’s incapacity; (b) the actor neither knows nor should know of the occasion for com pliance; (c) the actor is unable after reasonable diligence or care to comply; (d) the actor is confronted by an emergency not due to his own mis conduct; (e) compliance would involve a greater risk of harm to the actor or others. Impson , 487 S.W.2d at 696.

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