To Prevent Excuse of a Statutory Violation, Party Asserting Negligence Per Se Must Obtain a Jury Finding that the Statutory Offender Violated the Common Law Negligence Standard

In Castro, held that in all negligence per se cases, the party asserting negligence per se bears the burden of proof to demonstrate excuse. The Castro court explained, the statutory violator must produce some evidence of a legally acceptable excuse. Then the party asserting negligence per se bears the burden of proof on the excuse claim and must obtain a finding that the statutory violation was common law negligence. The party asserting negligence per se is also entitled to an accompanying instruction defining any legally acceptable excuse raised by the evidence. The author claims Castro is a progressive step in Texas civil procedure because it eliminates long-standing confusion concerning overlapping and inconclusive rules. Finally, the author suggests that the Texas Supreme court clarify the form of the excuse instruction to ensure that a statutory violation be negligence per se unless legally excused.