How Can Texas Comparative Negligence Affect My Case?

When injured victims meet with a car accident lawyer, one of the first questions they often ask is:

“What if the crash was partially my fault? Can I still get compensation for my injuries?”

The short answer to this question is yes—as long as you weren’t more than 50% responsible, that is.

Texas law uses a system called modified comparative negligence for personal injury cases. Comparative negligence says that you can still receive monetary compensation for injuries if you were partially responsible— but the maximum amount of money you can receive goes down the more your actions contributed to the crash.

Read on to learn more.

Comparative negligence is a legal rule that sometimes goes by other names, including comparative fault and proportionate responsibility.

The core idea of comparative negligence is that the more responsibility you bear for contributing to your own injuries in a car accident—or any other type of personal injury claim—the less you can receive in compensation for medical bills and other damages. The percentage of the total damages you lose matches the percentage you were at fault for the incident.

Or, maybe an easier way to think of comparative negligence is: the percentage of the total damages you can receive in a personal injury claim matches the percentage that the OTHER party was at fault.

So, let’s say you have a personal injury claim that could be worth $100,000 in total damages. If the other person was 80 percent at fault (which means you were 20 percent responsible), the most you could recover in compensation is $80,000. If the other person was 60% at fault, your maximum amount is $60,000. And so on.

In a “pure” comparative negligence state, this holds true no matter how much (or little) you’re at fault—so even if you’re 99% responsible, you can still recover 1% of your damages. However, Texas is one of many states that modifies pure comparative negligence in an important way.

Texas’ Rule: Modified Comparative Negligence

Texas negligence laws work the same as comparative negligence for all cases where the other person who injured you (the defendant) is at least 50 percent at fault. But if you were 51 percent at fault or more for causing your injuries, your potential monetary compensation goes down to zero.

Put another way: if you want to file a successful car accident claim in Texas, you and your attorney must prove that the negligent person who injured you in a car crash was at least 50 percent responsible for causing the wreck. If you (the plaintiff) are 51 percent responsible or more, you can’t receive any money at all for your injuries and other losses.

Here’s a table that might make the modified comparative negligence laws in Texas easier to understand.

Contributory Negligence

The alternative to comparative negligence is a different rule called contributory negligence. Under pure contributory negligence, an injured party can’t recover compensation if they were even 1 percent at fault for causing their own injuries.

Pure contributory negligence is a very harsh rule, but fortunately, it doesn’t apply to personal injury claims in Texas. So, if you’ve been injured in Texas, just know that if you read about contributory negligence, this rule doesn’t apply in our state and isn’t relevant to your case.

Joint and Several Liability

One question you might be asking is: What if multiple other people were at fault for causing my injuries? In that case, figuring out who must pay for damages may involve Texas’ rules for joint and several liability.

Under joint and several liability, a defendant in a personal injury case who is 51 percent at fault or more for causing your injuries may be jointly and severally liable. If joint and several liability applies, the defendant who is mostly at fault can be held responsible for all the damages you (the plaintiff) are entitled to.

As an example, let’s say Mike and Jennifer both contributed to the crash that injured you. Mike was 60 percent responsible, and Jennifer was 40 percent responsible.

If joint and several liability applies, you could file a personal injury claim against both Mike (who would owe 60 percent of the damages) and Jennifer (who would owe 40 percent). Or, you could file a claim against Mike for 100 percent of the damages.

So, why does this matter? Well, imagine Mike is a millionaire and Jennifer just filed for bankruptcy. Suddenly, the option to file a claim against Mike alone looks a lot better than trying to collect a chunk of your damages from Jennifer, who is broke.

There is also another, much more rare application of joint and several liability that involves criminal acts. If the defendant was engaged in some type of criminal behavior—like murder, sexual assault, or kidnapping—at the time they caused your injuries, then they can be held fully responsible for the damages no matter what percentage they were at fault.

RELATED: How Long Do I Have to File a Personal Injury Claim in Texas?

Even if you understand how Texas comparative negligence works, you still may be wondering: “OK, but what does this mean for my case?”

Comparative negligence affects personal injury cases in lots of complicated ways, but there are a few results of comparative negligence that you can almost always expect after a car crash.

The Insurance Company Will Try to Put the Blame on You

Under comparative negligence, the most straightforward way for the insurance company to get out of paying you fair compensation is to blame you for the accident. As soon as you start talking with the insurance adjuster after a car accident, they will begin looking for ways to pin the crash on you.

The adjuster won’t tell you this, of course—they may tell you they are trying to help or are just looking to get “the facts.” In reality, the only facts the adjuster is interested in are the ones that make you look bad. That’s why after a car crash, you should never talk to an insurance adjuster until you’ve spoken with an experienced personal injury attorney and gotten a free case evaluation.

Expect Lots of Arguing Over Who Is at Fault and to What Degree

Even if the insurance company can’t successfully blame the majority of the car crash on you, they can still pay you less if they can show you were partially at fault for the collision. So, the insurance company and their attorneys will dig up and present any evidence they can possibly use against you. The more blame they successfully place on you, the less they have to pay you.

To fight back against these tactics, it’s critical to work with an experienced lawyer. A good Texas personal injury attorney will know all the strategies and arguments that insurance companies use to blame injured victims, and they will be able to gather essential evidence and present compelling arguments to show the truth about how the defendant caused your injuries.

You and Your Attorney Will Have to Prove the Defendant Was at Least 50 Percent at Fault

Since the amount of compensation you’re eligible to receive depends on how much the defendant was at fault, you and your attorney will have to show how the defendant’s actions caused the crash that injured you. And it will be very important to show that the defendant was at least 50 percent at fault — because under Texas’ modified comparative fault rule, if you (the plaintiff) are 51 percent at fault or more, then you have no case.

Texas has very specific rules about what goes into showing that a defendant is at fault and liable. To prove negligence, you and your lawyer will need to show that five legal elements are present in your case:

1. Duty of care: The defendant had a duty to act (or not act) in a certain way to ensure the safety of those around them. This element is usually the easiest to prove. For example, everyone who drives a car has a duty to drive safely and be free of distractions, intoxication, and other factors that could endanger others on the road.
2. Breach of duty: The defendant did something—or failed to do something—that violated their duty to look out for others. As an example, a person texting on their cell phone while driving is committing a breach of duty.
3. Cause in fact: The defendant’s negligence caused your injuries. So, in this example, the defendant’s texting and driving directly caused them to crash into your vehicle and injure you.
4. Proximate cause: The defendant should have known that their actions could create a danger to others. In the case of texting while driving, most reasonable people know that it’s dangerous thanks to years of public service messaging and stories of distracted-driving crashes.
5. Damages: You (the plaintiff) suffered actual harm that the legal system can address with monetary compensation. Medical bills for surgery, treatment, and physical therapy after a car crash are an obvious example of damages, although there are many other types of damages—including lost wages, chronic pain, emotional trauma, etc.

RELATED: 16 Questions to Ask Personal Injury Lawyer Candidates

As a team of attorneys whose families have lived in the Katy, Texas area for generations, we know how important it is to build community. We realize that most people here don’t think of themselves as the “suing type” and may hesitate to file a lawsuit against a neighbor or member of their community. Remember that in most negligence cases, it’s the insurance company who will be paying the damages — not the individual.

You can count on our team of personal injury lawyers to fight for you but also represent you with professionalism and compassion. We’re here to provide the support you need and get you the compensation you deserve.

To schedule your free consultation with a compassionate attorney from our team, call us at (281) 371-6345 or use the easy contact form on our website.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.