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Guide to Negligence in Texas and New Mexico

January 19, 2023
what are the 5 elements of negligence

Most people have heard the term negligence before, but understanding what it is and how it relates to personal injury law is a bit more foreign to most. The success of a personal injury claim hinges on the plaintiff proving the five elements of negligence.

Generally, negligence is the failure to use reasonable care that results in injury or damage to another person. The elements of negligence are typically universal. However, jurisdictions vary on how much a plaintiff can recover if they were partially to blame for an accident.

If there are allegations that you were partially at fault, those allegations can have serious consequences to your claim. It is important to talk to a knowledgeable lawyer who can fully explain the law and how it affects your case.

If you have been injured due to someone else’s actions, it will be helpful to understand negligence law when evaluating your legal options. Let’s take a closer look at the negligence elements and what they may mean for you. 

For a free consultation, please don’t hesitate to call (800) 433-2408 or send us an online message today.

What Are the Elements of Negligence? 

An injured plaintiff must prove specific elements of negligence to win a personal injury claim. 

Duty of Care

The first element of negligence is the duty of care. The plaintiff must show the defendant had a legal responsibility to act or behave in a particular manner to prevent injury to others. This responsibility is called a duty of care.

A classic example is driving a vehicle. Drivers have a duty to drive in a safe manner while obeying all traffic laws to prevent causing crashes where someone may be seriously injured or killed. All drivers have a duty of care to others on the road. 


If a plaintiff can establish the defendant had a duty of care, they must then prove the defendant breached that duty. A breach of duty occurs when the defendant’s conduct deviates from the ordinary and accepted standard of care.

Following the example from above, if a driver is speeding, is texting while driving, fails to yield the right of way, or is otherwise careless and causes a crash, they will likely be found to have breached their standard of care.


If a plaintiff can prove the defendant breached their duty, they then must prove the breach of duty was the cause or direct cause of the injury. If a careless driver rear ends you, resulting in physical injury to you as well as damage to your vehicle, then their breach of duty was the proximate cause of your damages.


Finally, even if the plaintiff can prove the first three elements of negligence, they must also prove damages. You might be asking, What are damages? Damages require a plaintiff to prove they suffered specific and actual losses due to the defendant’s actions.

Damages can include lost wages, medical expenses, and pain and suffering. In our example, the plaintiff would need to prove that, due to their car crash accident, they incurred medical bills, lost income, or experienced pain and suffering. 

Modified Comparative Negligence 

While the negligence elements are generally the same in all states, how the law handles negligence claims differs from state to state. For example, Texas follows the modified comparative negligence standard.

Under this standard, plaintiffs can only recover damages if they are 50% or less at fault for the incident. If a plaintiff is 51% or more at fault, they will not be entitled to damages. This is why the modified comparative negligence standard is often called the 51% rule. 

If a plaintiff is partially at fault but is still less than 51% at fault, they can recover some compensation. However, the amount they can recover will be reduced by their share of the fault. For example, if a plaintiff is 40% at fault and has $100,000 in damages, they can recover up to $60,000.

Contact Our Personal Injury Attorneys

Since 1984, the attorneys at Fadduol, Cluff, Hardy & Conaway, P.C. have been the voice for the injured. We strive to provide compassionate advocacy for each of our clients. With a combined 65 years of experience, we have the knowledge and skill necessary to help you fight for the compensation you deserve.

Contact us online or call (800) 433-2408 today to schedule a no-obligation consultation.