Negligence in Texas — and what Werner changed about causation in 2025

Negligence is the tort behind most Texas injury filings — car crashes, falls, bad work, avoidable accidents. The elements are short enough to recite in a sentence and the hard fighting happens in two of them: whether a duty existed at all, and whether the defendant's carelessness caused the harm at all.

Three statutes shape the money more than the common law does. Recovery is barred entirely if you are more than 50 percent responsible. There are no attorney's fees. And punitive damages are capped, which is why a headline verdict often shrinks at judgment.

What the claim is

Someone failed to use the care a reasonable person would have used, and you were hurt or your property was damaged because of it.

Where the right comes from

Common law. The Texas Supreme Court stated the elements in Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990), and has repeated them since in cases including IHS Cedars Treatment Center v. Mason, 143 S.W.3d 794 (Tex. 2004).

What a plaintiff has to prove — PJC 2.1

1. A legal duty owed by the defendant to the plaintiff.
2. A breach of that duty.
3. Proximate cause — the breach caused the injury.
4. Damages.

Proximate cause has two parts. Cause in fact asks whether the act was a substantial factor in bringing about the harm and whether the harm would have happened without it. Foreseeability asks whether a person of ordinary intelligence would have anticipated the danger.

Gross negligence

Defined by statute in CPRC § 41.001(11), and it takes two findings:

• viewed objectively from the actor's standpoint at the time, the act involved an extreme degree of risk considering the probability and magnitude of potential harm; and
• the actor had actual, subjective awareness of that risk and proceeded with conscious indifference anyway.

The second half is what defeats most gross negligence claims. Careless is not enough; the defendant has to have known.

Negligence per se

Where a penal statute sets the standard, a plaintiff can borrow it. The plaintiff must belong to the class the statute protects, and the injury must be the type the statute was written to prevent (Perry v. S.N., 973 S.W.2d 301 (Tex. 1998)). Borrowing the standard does not excuse proving causation and damages.

How long you have to file

Two years, under CPRC § 16.003(a), running from the injury.

That section is expressly subject to three others, and one of them matters a great deal. CPRC § 16.0045 sets 30 years for personal injury from the child sexual offenses it lists, and five years for sexual assault, aggravated sexual assault, trafficking of persons, and compelling prostitution. A flat "two years for any injury" answer is wrong for those claims.

The discovery rule applies narrowly — only where the injury is inherently undiscoverable and objectively verifiable.

What has to happen before you file

Nothing for ordinary negligence. A claim against a governmental unit is different: the Tort Claims Act imposes its own notice deadlines, and many cities require notice within as little as 45 days by charter.

What the claim pays

Economic damages — medical expenses, lost earning capacity, repair or replacement cost. Medical expenses are limited to amounts that were "actually paid or incurred" under CPRC § 41.0105, not the amount originally billed.

Non-economic damages — physical pain, mental anguish, disfigurement, physical impairment. No cap outside health care claims.

Exemplary damages, only on clear and convincing proof of fraud, malice, or gross negligence under CPRC § 41.003, and the jury must be unanimous on both liability and amount. CPRC § 41.008(b) caps them at the greater of two times economic damages plus non-economic damages up to $750,000, or $200,000.

No attorney's fees. There is no fee statute for ordinary negligence, which is why injury lawyers work on contingency.

Proportionate responsibility

Chapter 33 assigns a percentage of responsibility to every claimant, defendant, settling party and designated responsible third party. CPRC § 33.001 states the rule in one sentence: a claimant may not recover if their percentage of responsibility is greater than 50 percent. At 50 percent or below, the recovery is reduced by that percentage.

Common defenses

• Proportionate responsibility. The plaintiff's own share of the fault.
• No duty. The most powerful defense in Texas negligence law, because duty is a question of law for the court.
• No proximate cause. After Werner, conduct that merely furnished the condition for an injury is not a cause of it.
• Sole proximate cause. A third party or the plaintiff caused the whole of the harm.
• Sudden emergency and unavoidable accident.
• Limitations.

What people get wrong

Gross negligence is not ordinary carelessness with a stronger adjective. It requires proof that the defendant subjectively knew about an extreme risk and went ahead. Bad judgment, even terrible judgment, is ordinary negligence.

"But for" is no longer enough by itself. Werner Enterprises, Inc. v. Blake (Tex. 2025) reversed a judgment of roughly $90 million, holding that a truck driver's presence and speed "merely furnished the condition that made the injuries possible" when another driver lost control and crossed the median. Causation now gets harder scrutiny in motor vehicle and premises cases.

Punitive damages are capped and the cap is not generous. Two times economic damages plus up to $750,000, or $200,000, whichever is greater.

There are no attorney's fees. Plaintiffs are often surprised that winning a negligence case does not make the other side pay for the lawyer.

Where it came from

Texas replaced contributory negligence — under which any fault by the plaintiff barred recovery — with comparative negligence in 1973, then narrowed it to the modified system now in Chapter 33, where crossing 50 percent still bars recovery entirely.

The 2003 tort reform session added the gross negligence definition, the exemplary damages caps, the unanimity requirement, and the paid-or-incurred limit on medical expense evidence. Werner in 2025 is the most significant judicial narrowing since.

Common questions

How long do I have to file a negligence claim in Texas?

Two years from the injury. Claims arising from the sexual offenses listed in CPRC § 16.0045 have five-year or 30-year periods instead.

Can I recover attorney's fees?

No. Texas has no fee-shifting statute for ordinary negligence.

What if I was partly at fault?

You can still recover if your share is 50 percent or less, reduced by your percentage. Above 50 percent you recover nothing.

Can I get punitive damages?

Only for gross negligence, malice, or fraud, proved by clear and convincing evidence to a unanimous jury, and the award is capped by statute.

Why is my medical bill lower in evidence than on the statement?

Because Texas limits recovery to amounts "actually paid or incurred". Charges written off by a provider or an insurer are not recoverable and are not admissible.

What does Werner mean for my case?

It raised the bar on causation. A defendant who was present, or whose conduct set the stage, is not liable unless that conduct was a substantial factor in causing the injury.

Where these rules live

• CPRC § 16.003 — Two-year limitations period
• CPRC § 16.0045 — Limitations for claims arising from certain offenses
• CPRC § 33.001 — Proportionate responsibility
• CPRC § 41.001 — Definitions, including gross negligence
• CPRC § 41.003 — Standards for recovery of exemplary damages
• CPRC § 41.008 — Limitation on amount of recovery
• CPRC § 41.0105 — Evidence relating to amount of economic damages