What is Contributory Fault?
If you’ve been injured in an accident, you have a right to sue the person (the defendant) who caused the accident. This personal injury claim is often pursued under the legal theory of negligence.
How Do I Prove Negligence?
In Texas law, a victim, or plaintiff, must prove four elements to establish negligence:
- Duty: The defendant owed the plaintiff a duty of care to act as an ordinarily prudent person would have acted under the circumstances.
- Breach: The defendant breached this duty.
- Causation: The defendant’s breach caused the plaintiff harm.
- Damages: The plaintiff suffered damages.
Assume the plaintiff can prove that the defendant negligently caused their injuries. What happens if the plaintiff was also partially responsible for their accident and injuries? This is called contributory fault, and the law has several ways to address it.
Types of Contributory Fault
The law of contributory fault varies greatly around the country. Standards include contributory negligence, comparative fault, 50% comparative fault, proportionate responsibility, and other systems.
Contributory negligence is the traditional standard. Under contributory negligence, the defendant is not liable if the plaintiff contributes to the occurrence of the accident in any way, even if they were only 1% at fault. In other words, if you contributed to your accident at all, the law will not allow you to recover damages.
Contributory negligence has been criticized as being too extreme. It denies the plaintiff’s recovery no matter the extent of the defendant’s misconduct. Only four states plus the District of Columbia still follow the contributory negligence. Fortunately, Texas is not one of them.
Pure Comparative Fault
At the other end of the spectrum is comparative fault. Under this system, the jury apportions damages between the plaintiff and defendant based on their percentages of fault for the plaintiff’s injuries. Under pure comparative fault, an injury victim can recover damages even if they are 99% at fault. This system has been criticized because it allows a plaintiff to be primarily at fault, but they can still recover damages.
For example, assume Bill is driving down a country road, listening to blaring music, and paying little attention to the road. He swerves into oncoming traffic and hits Karen’s car. Karen, who was texting, could have avoided the collision if she’d been paying attention. Bill sues Karen and proves her negligence. The jury finds Bill suffered $100,000 in damages but was at 95% fault. Nevertheless, they award him damages of $5,000 ($100,000 reduced by 95%).
Modified Comparative Fault Standards
Many states follow a modified comparative fault standard, including Texas. Here are the various standards:
50% Comparative Fault
In this system, the plaintiff and defendant are both held liable for their own percentage of fault – except that the plaintiff cannot be 50% or more at fault. If so, they are barred from recovery.
For example, assume Tom and Brad get into a boating accident. Tom was drinking tequila, and Brad was drinking beer. Tom sues Bill, and the jury determines that Tom suffered $10,000 in damages. The jury also finds they were equally (50%) at fault. In this case, Tom’s recovery would be barred.
Proportionate Responsibility – the Texas Standard
The most popular comparative fault rule is the 51% comparative fault standard. Texas follows this standard and refers to it as “proportionate responsibility.” Under this system, the plaintiff may not recover if they are 51% or more at fault. They can recover if they are 50% or less at fault.
Let’s go back to the example of the boating accident between Tom and Bill. The jury found Tom suffered $10,000 in damages but was 50% at fault. Under Texas’ proportionate responsibility standard, he can recover $5,000 (50% of $10,000) because he was under 51% at fault.
South Dakota Standard
This state has a unique approach to contributory fault. When the plaintiff and defendant share responsibility, the plaintiff is barred from recovery unless their negligence was only “slight” and the defendant’s negligence was “gross.” This system has been difficult to administer because of the challenges associated with defining the slight and gross negligence standards.
Hybrid Systems of Contributory Fault
The District of Columbia uses two systems of contributory fault. In most cases, it uses contributory negligence. However, if the non-motorized user of a public road (i.e., pedestrian or bicyclist) is injured and proves negligence, they may recover damages as long as their total percentage of negligence is less than that of the defendant.
Recover Even if You Share Fault
If a defendant’s negligent conduct injured you in Texas, don’t worry if you’re partially at fault. As long as you’re 50% or less at fault, you may still be able to recover damages. Our lawyers are ready to represent you and help get you the best settlement or jury award possible.