The Texas Supreme Court has ruled that the Texas Tort Claims Act’s waiver of governmental immunity for “negligence” includes a claim for injuries caused by “negligence per se.”
City of Houston v. Chelsea Manning, Individually and as Next Friend of T.N., Aaliyah Mitchell, and Cierra Williams (No. 24-0428; May 23, 2025) arose from a collision between a Houston fire department truck and Plaintiffs. HPD’s investigation concluded that the fire truck’s operator had “failed to proceed with duty and care through the intersection.” Manning sued, alleging negligence per se and other theories. The City moved for summary judgment based on governmental immunity, which the trial court denied. The Houston [14th] Court of Appeals affirmed, concluding that the TTCA waived governmental immunity for Plaintiffs’ negligence per se claim.
In a per curiam opinion, SCOTX affirmed. The City argued that § 101.021(1), CPRC, only waives governmental immunity for “the negligence of an employee acting within the scope of employment . . .,” and if the Legislature had wanted to include negligence per se, it could have said so. Observing that Texas courts of appeals that have considered the issue have split, the Court broke the tie in favor of Plaintiffs. The Court explained that penal statutes which provide the basis for many negligence per se claims “‘merely [] define more precisely what conduct breaches’ the ‘common law duty.’ In other words, negligence per se is generally ‘a species of negligence, in which the breach of duty element is established by showing the violation of a statute or regulation” (citations omitted). Noting further that the great majority of negligence per se cases that have come before the Court “have involved violations of traffic statutes by drivers and train operators . . ., applying negligence per se causes no great change in the law because violating the statutory standard of conduct would usually also be negligence under a common law reasonableness standard.”
Here Plaintiffs allege violations of two Transportation Code provisions governing the safe operation of emergency vehicles. These statutes “do not substitute a legislatively imposed standard of conduct for the reasonable-person standard of common-law negligence” (citations omitted). The Court thus affirmed the court of appeals as to this issue. As to the City’s issues regarding the court of appeals’ holdings “on official immunity, the emergency exception, and the 9-1-1,” on which the court of appeals determined that there were genuine issues of material fact, the court remanded to the court of appeals for further consideration.
