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Click here for the full text of this decision FACTS:The plaintiffs/appellees, Darlyn Jill Urban, individually, and as representative of the estate of Donald G. Maker and Richard J. Maker, individually, sued the defendant/appellant, Ridgecrest Retirement & Healthcare d/b/a Ridgecrest Retirement Center Ltd., for negligence in its care of Donald G. Maker. A jury returned a verdict awarding $999,999.99 to Maker’s estate, but found that his children sustained no damages. The trial court entered judgment against Ridgecrest and in favor of Maker’s estate in the amount of $999,999.99, plus prejudgment interest of $169,191.71. HOLDING:Reversed and remanded. A violation of a nonpenal administrative code statute does not establish a negligence per se claim. For example, in Pack v. Crossroads Inc., 53 S.W.3d 492 (Tex. App. Fort Worth 2001, pet. denied), the negligence per-se claim involved alleged breaches of title 40, chapter 19 of the Texas Administrative Code, which applies to a nursing home’s licensure and participation in the Medicaid program. The penalties for enforcement of title 40, chapter 19 are civil remedies, ranging from a warning letter of noncompliance to license revocation to administrative penalties. The Pack court held that the administrative code provisions were not penal in nature; thus, the trial court properly struck the negligence per-se claim. In response, Maker contends that the negligence per se instruction “was redundant because it merely restated the standard of ordinary care and did not alter the common law duty which was included in the broad form submission of the negligence question.” Maker relies on Smith v. Central Freight Lines Inc., 774 S.W.2d 411 (Tex. App. � Houston [14th Dist.] 1989, writ denied), which involved a suit for personal injuries arising out of a rear-end collision. Smith addressed the violation of a Texas Transportation Code section involving the driver of a motor vehicle maintaining an assured clear distance when following another vehicle. The Smith court referred to a commentary to �5.01 of the Texas Pattern Jury Charge, which states that “[a] few negligence per se standards found in statutes or regulations have been held simply to restate the standard of `ordinary care’ and not to alter the duty that already exists at common law.” The court held that it is “redundant to submit a question on the statutory standard or to instruct the jury regarding it, and the negligence per se standard is subsumed under the broad-form negligence question.” The court concludes that Smith is distinguishable, however, because it dealt with a Transportation Code section. The Administrative Code chapter 92, the provision at issue in this case, is instead similar to the Administrative Code chapter 19 in Pack. Likewise, the penalties for enforcement of chapter 92 are civil remedies, such as revoking a license or referring a facility to the attorney general for the assessment of civil penalties. 40 Tex. Admin. Code ��92.153, 92.156. The court concludes that these Administrative Code provisions are not penal in nature; therefore, the negligence per se instruction was improper. Accordingly, the court holds that the trial court erred in submitting the negligence per se instruction. In Crown Life Ins. Co. v. Casteel, the Texas Supreme Court held, “When a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory.” 22 S.W.3d 378 (Tex. 2000). In this case, the negligence per se instruction, an invalid theory, was improperly submitted in the broad form question along with negligence, a valid theory. As in Casteel, this court cannot determine whether the jury based its verdict on the improperly submitted theory. Thus, the court holds that the error was harmful and a new trial is required. OPINION:Hedges, J.; Alcala, Higley and Hedges, JJ.

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