Comparative Fault

Comparative fault, also known as contributory fault, proportionate responsibility, and comparative negligence, is a way of distributing compensation between the parties to a personal injury claim when more than one party is at fault. All states, including Texas, apply some version of comparative fault in this situation. Texas codifies comparative fault by statute.

The Elements of a Negligence Claim

The Elements of a Negligence Claim

Most personal injury claims are based on negligence, and comparative fault was designed to apply to negligence claims. To win a negligence claim, you must prove:

  • The defendant owed you a duty of care. Most of the time, this means ordinary care, such as the duty to drive safely or to remove dangerous conditions from your property before inviting guests. On other occasions the duty is much higher—the duty of a doctor to provide you with medical treatment that is at least as good as the treatment that a reasonably competent physician would provide.
  • The defendant breached their duty of care.
  • You suffered a personal injury—a broken arm, for example.
  • The defendant’s breach of duty was the proximate and factual cause of your injury.

You only need to prove your claim by the “preponderance of the evidence” standard. You will win as long as your evidence even slightly outweighs the defendant’s evidence.

Different Types of Comparative Fault 

Even if you establish that the defendant negligently caused your injuries, you can still lose some or all of your damages if you were partly to blame for the accident. Following are descriptions of three versions of comparative fault that different states apply.

Contributory Negligence

Contributory negligence is a harsh legal doctrine that applies only in Washington D.C., Alabama, Maryland, North Carolina, and Virginia. Under this doctrine, if you are even 1% at fault for the accident, you cannot collect any damages at all. You can only collect damages if you are 0% at fault.

“Pure” Comparative Negligence

Pure comparative negligence could be described as the opposite of contributory negligence. Under pure comparative negligence, you sacrifice whatever percentage of damages that represents your percentage of fault for the accident. If you were 1% at fault, you would lose 1% of your damages. If you were 99% at fault, you would lose 99% of your damages.

You will also have to pay the other driver an amount that equals your percentage of fault, and they will have to pay you whatever damages represent their own percentage of fault. You could come out ahead or behind this way. 

Currently, only 13 states apply pure comparative negligence. Texas is not one of them.

Modified Comparative Negligence in Texas and Elsewhere

Modified comparative negligence works like pure comparative negligence, except that the state sets a threshold of 50% or 51%. If your percentage of fault equals or exceeds the threshold, you cannot receive any compensation. Texas applies modified comparative negligence with a 51% threshold.

Suppose, for example, that both drivers share fault in a truck accident case—the truck driver was 55% at fault, and the automobile driver was 45% at fault. Suppose further that the truck driver suffered $20,000 in damages while the automobile driver, who suffered spinal cord injuries, suffered $100,000 in damages. The truck driver would receive nothing, while the automobile driver would receive 55% of their damages, or $55,000.

Comparative fault applies to car accidents and accidents where more than one party might share the blame.

But I Plan To Settle My Claim Out of Court…

Most people prefer to settle out of court, which is exactly how parties resolve most personal injury claims. Most defendants don’t want to go to court any more than you do. It’s just simpler and easier to settle. 

Nevertheless, the law matters. The parties will likely settle based on what they think a court would award at trial. If you are lucky, the defendant might agree to settle for a bit more just to avoid the risk of a “runaway jury” if the case goes to trial.

Why You Probably Need a Lawyer

If you suffered serious injuries in a Texas accident where fault is in dispute, the difference between 50% and 51% is the difference between 50% of your damages and nothing at all. If an insurance claim is involved, you can be sure that the insurance company will keep chipping away at your claim, blaming you for more and more, until they reach 51%. 

Insurance adjusters are professional negotiators, and you might need an experienced Fort Worth personal injury lawyer to stop them.

Yes, You Can Afford a Top-Tier Fort Worth Personal Injury Lawyer

Most personal injury lawyers take their fees out of whatever compensation they win for you. Typically, a lawyer will charge you 33% to 40% of your compensation. If you don’t win, you pay nothing. For Fort Worth personal injury lawyers, the strength and magnitude of your claim matters, not how much money you have. Contact our legal team at Anderson Injury Lawyers by calling (817) 294-1900 to schedule a free online consultation today.