That Was Your Own Fault: Proportionate Responsibility in Texas

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You are hurt in a car wreck, and it was the other driver's fault. You file a claim with the other driver's insurance carrier, expecting it to pay for your medical bills and car repairs. Then you get a letter from the insurance adjuster, telling you they are denying your claim because they have determined that you are 70% "at fault." What does that mean?

The other driver's insurance carrier only has to pay you if other driver is legally liable. A person is generally liable to you for damages if he is "negligent"-meaning he violated his legal duty to use ordinary care-and his negligence causes you injury or damages your property. However, at common law, there was a defense to that liability called "contributory negligence." If the defendant could prove that the plaintiff's own negligence caused or contributed at all to his injury, then he had no liability at all to the plaintiff, even if the defendant was negligent, too, and even if the defendant was more negligent than the plaintiff. The plaintiff could only save his case through a somewhat confusing doctrine called "last clear chance."

Recognizing that this was a harsh rule, most states have passed laws replacing the old system with something called "comparative negligence"-today, only four states and the District of Columbia still use the traditional rule. Under this system, a plaintiff can still recover at least some damages from a negligent defendant even if the plaintiff's own negligence contributed to his injuries. The jury is asked to compare the fault of the plaintiff and the defendant and assign percentages to each, and the plaintiff's damages are reduced by the amount of fault the jury placed on him. For example, if the jury finds that the plaintiff was 25% at fault and the defendant was 75%, and that the plaintiff suffered $10,000 in damages, then the plaintiff's damages would be reduced by 25% to $7,500.

11 states follow a "pure" comparative negligence rule, where a plaintiff will receive some recovery even if the jury finds him mostly at fault-if the plaintiff is 95% at fault and the defendant is 5% at fault, the plaintiff would receive 5% of his damages.

Most states, including Texas, follow a "modified" form of comparative negligence, which provides a threshold at which the plaintiff can be barred from any recovery. In 23 states, including Texas, if the jury finds the plaintiff 51% or more at fault, the plaintiff gets zero recovery. 10 other states follow the "50% rule," where a plaintiff gets zero recovery if he is found 50% or more at fault.

In Texas, this law is found in Chapter 33 of the Texas Civil Practice and Remedies Code, which also governs the allocation of fault when there are multiple defendants or when defendants blame third-parties for the plaintiff's injuries. It does not just apply to car wrecks or even just to negligence cases, but to all tort claims. For example, even if a defective product injures someone, the manufacturer can still argue that the injured consumer misused the product or somehow failed to prevent his own injury.

If you or someone you know has been injured through the fault of another, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz by calling 713-222-7211 or toll free at 1-800-870-9584.

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