In Perry v. S.N., 973 S.W.2d 301, 304 (Tex. 1998), the court explained that the adoption of criminal statutes into tort law is a matter of judicial discretion. Id.
The threshold questions in every negligence per se case involving a penal statute are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent. Id. at 305.
If a plaintiff satisfies these threshold questions, the court must determine whether it is appropriate to impose negligence per se liability for violations of the statute.
In Perry, the Texas Supreme Court identified five nonexclusive factors to consider in determining whether a statute establishes an appropriate standard for negligence per se liability:
(1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common-law duty;
(2) whether the statute puts the public on notice by clearly defining the required conduct;
(3) whether the statute would impose liability without fault;
(4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of wrongdoers; and (5) whether the plaintiff's injury is due to a direct or indirect violation of the statute. Id. at 309.