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Obstructing a Roadway is “Negligence Per Se” Under Texas Law

Imagine you are driving down the road at night, and as you round a curve in the roadway, you see small, blurry lights that you can’t properly make out in the distance. As you drive closer, you suddenly realize the blurry lights are actually the reflective side markings on an 18-wheeler trailer that is straddling the roadway, leaving you now where to go before you collide into the trailer.

This type of accident occurs more often than people realize, and the results are often devastating. We are conditioned as drivers to be on the lookout for headlights and brake lights, but our brains struggle to process random glowing orbs that are neither, and seeing such objects in the distance does not allow one to intuitively gauge the distance between their car and the mysterious object ahead.

For these reasons, Texas lawmakers have made it illegal, strictly speaking, for a vehicle to obstruct a roadway. The fact that such conduct is criminally illegal means that when you sue someone for this kind of misconduct, you don’t sue them under a theory of ordinary negligence. On the contrary, obstruction of a roadway is a special class of negligence called “negligence per se.”

In this article, accident attorney Michael Grossman explains what negligence per se is and why accidents caused by roadway obstructions fall into this category.


Questions answered in this article:

  • How is negligence per se different than ordinary negligence claims?
  • What does Texas law say about accidents involving roadway obstructions?
  • What are the elements of negligence per se, and how does it apply to obstruction of roadways?

What Is Negligence Per Se?

For typical negligence cases, a jury makes a decision based on whether or not the wrongdoer violated a duty to act with reasonable care towards the victim. For example, a reasonable driver would slow their speed before negotiating a curve in the road in order to avoid driving off the road or drifting into the opposite lane. But if a defendant causes an accident when they fail to take these steps, and if a jury concludes that this driver’s actions indeed were outside of the scope of what a reasonable person’s conduct, then they declare that the accused was negligent, which is the civil law equivalent of declaring that a criminal defendant is guilty.

While that is how most personal injury cases work, there are some shortcomings with framing the defendant’s misconduct in terms of negligence. Most importantly, negligence is kind of a nebulous concept. Ultimately, after all of the evidence has been presented, the jury is given a jury charge which asks them whether or not the defendant was negligent. Under this approach, the jury must contemplate exactly what negligence means and whether or not the specific act of misconduct the defendant is accused of committing counts as negligence.

To summarize, suing someone under an allegation of negligence means that you’re asking a jury to examine the conduct and categorize it as something that is open to interpretation, and this can be a bit perplexing.

However, cases built on an allegation of negligence per se are different. Negligence per se can best be thought to mean “negligence by default” or “simply doing the act makes someone negligent.” So when you sue someone under a theory of negligence per se, you don’t need the jury to analyze the allegations and attempt to classify them as negligence or not. So rather than asking the jury whether the defendant’s misconduct is negligence, when you ask the jury to contemplate a defendant’s wrongful conduct in terms of negligence per se, you are, in effect, simply asking them, “Did the defendant do the bad thing, yes or no?”

In terms of getting a favorable result, this is a huge advantage. But because this is such a powerful “shortcut,” judges don’t let you submit any old allegation as a matter of negligence per se. On the contrary, on certain kinds of bad conduct can be submitted to the jury as a matter of negligence per se, and all the rest must be submitted to the jury as a matter of negligence.

So what determines whether a plaintiff can ask the jury to contemplate the defendant’s conduct in terms of negligence or negligence per se? Simply put, you are only allowed to frame the discussion in terms of negligence per se if you can show that the defendant violated a law that is criminal or punitive in nature, that the law exists because the legislature passed the law to protect people from a specific type of harm, and that the person hurt by the alleged misconduct is the kind of person that the law sought to protect. Here’s an example:

  • Imagine there is a law that says one must pay a $500 fine if they exceed 50 mph in a construction zone. A few days after the law is passed, someone hits a construction worker while going 75 mph, injuring him badly. One could reasonably conclude that the case can be filed under a theory of negligence per se because the defendant broke what appears to be a criminal law that was designed to protect construction workers, and the injured person is in fact a construction worker. So rather than ask the jury whether or not the other driver’s misconduct constitutes negligence, the construction worker’s lawyer can simply ask the jury, “Did the defendant violate this law,” and if the answer is yes, then the defendant is assumed to be negligent by default.

For a more detailed explanation of negligence per se and how it works, check out our Negligence Per Se Overview.

Road Obstruction Under Texas Law

Within the legal community there has long been a debate as to whether accidents caused by roadway obstruction should be thought of as negligence per se or ordinary negligence. Our attorneys feel the matter is settled. We have sued numerous defendants and have alleged negligence per se when they obstructed the roadway, and never has this theory of liability been rejected by the courts. As previously mentioned, negligence per se can only be considered in situations where a statute has been violated. Below is the statute in Texas regarding the obstruction of roadways.

Sec. 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.

  • (a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
    • (1) Obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or
    • (2) Disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:
      • (A) To prevent obstruction of a highway or any of those areas mentioned in Subdivision (1); or
      • (B) To maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.
      • (b) For purposes of this section, “obstruct” means to render impassable or to render passage unreasonably inconvenient or hazardous.
      • (c) An offense under this section is a Class B misdemeanor.

Clearly obstructing a roadway is a violation of the law, and if an accident of this nature were to occur, the injured person could have a case for negligence per se if all of the elements for a negligence per se case are met.

Permissible Negligence Per Se Car Accident Allegations in Texas

Below are other types of accidents that would fall under the negligence per se category in Texas:

The Attorneys at Grossman Law Offices Know How to Win Negligence Per Se Cases.

Negligence per se cases can be a tricky type of claim to navigate within the court system, and you need an experienced attorney to help navigate the system. The car accident attorneys at Grossman Law Offices, based in Dallas, TX, has over 25 years of experience in litigating negligence per se cases. Contact us to a 855-326-0000 for a free consultation about your claim.


Related Articles for Further Reading:

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