What is Modified Comparative Fault in Texas?

Oct 31, 2022 | Guides, Legal Topics

Contributory negligence is probably the most common insurance company defense in car crashes, work accidents, and other kinds of personal injury cases. As outlined below, the process is basically the same in all states, but the outcome is different. Like most other jurisdictions, the Lone Star State is a modified comparative fault state with a 51 percent threshold

This doctrine is very old. One of the earliest comparative fault cases is Davies v. Mann (1842). The plaintiff unwisely allowed his donkey to graze on the side of the road. While the Rocky Mountain canary was enjoying his snack, the defendant came around a bend at what witnesses called “a smartish pace.” His wagon then “ran against the ass, knocked it down, and the wheels passing over it, it died soon after.” The court ruled both parties were at fault for jennet’s untimely death.

The dedicated attorneys at Williams Hart & Boundas don’t let legal loopholes prevent them from obtaining maximum compensation. As is often the case in life, thorough preparation is usually the key to a successful result, which in this case, is overcoming the modified comparative fault defense in Texas. Maximum compensation in a car crash or other personal injury claim usually includes pay for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Establishing Liability

Comparative fault is a bit like the second hurdle in a race. If Houston personal injury attorneys worry too much about the second hurdle, they’ll probably trip over the first one, which is establishing liability in an injury case.

Davies v. Mann and other similar cases established the framework for a negligence case that’s still used today. The four parts of a negligence claim are:

  • Duty: Most individuals, including property owners and drivers, have a duty of reasonable care. This duty resembles the Golden Rule (do unto others as you would have them do unto you) which children once learned in school. A higher duty of care applies in some cases, such as commercial driver or professional negligence matters.
  • Breach: A breach of duty is a lack of care. Not every mishap is a breach of duty. In most cases, speeding at 5mph over the limit is not a breach of duty. Similarly, failure to conduct safety inspections every half hour probably isn’t a breach of duty. Pretty much anything more serious is a breach of care, especially if the tortfeasor (negligent driver) was a doctor or a commercial driver.
  • Cause: A Houston personal injury attorney must establish factual and legal cause. Most lawyers call factual cause but-for causation. The breach of duty need not be the only cause but the primary cause (i.e.,  the incident wouldn’t have happened “but for” the breach of duty). The legal cause is basically the foreseeability (possibility) of injury. If Amelia runs over Max and Max’s doctor botches the surgery, Amelia isn’t responsible for that unforeseeable injury.
  • Damages: Usually, courts only have the power to award money damages. They cannot turn back the clock and change what happened. So, money must be able to compensate the victim, at least in part. This element is more complex in no-fault insurance states, which Texas is not.

Plaintiffs must prove negligence, or a lack of care, by a preponderance of the evidence, or more likely than not. That’s one of the lowest standards of proof in Texas law. Evidence in an injury claim usually includes witness statements, the police accident report (if available), and medical bills.

Burden of Production

Comparative fault is an affirmative defense (we apologize for the additional Legalese). So, before the jury hears any evidence about joint responsibility, insurance company lawyers must convince the judge that the defense could apply.

Usually, judges make these decisions during pretrial hearings. Houston personal injury attorneys may advocate for their clients at these hearings. A favorable outcome, which is a finding that the defense is inapplicable, often leads to a fast settlement since the insurance company has lost its trump card.

As mentioned, the victim’s fault must be more than theoretical. If Jim was speeding at 5mph over the limit, his excessive speed, while illegal and unsafe, probably didn’t contribute to the wreck. Likewise, if Jim’s Barber Shop didn’t use a blowtorch to melt ice on the sidewalk, that lack of effort probably isn’t enough to trigger the defense.

Motorcycle helmets are a similar issue. Theoretically and statistically, protective headgear significantly reduces the risk of a head injury. But, insurance company lawyers must do more than cite safety statistics and wag their fingers at victims. Instead, they must prove that the failure to wear a helmet, as opposed to the driver’s negligence, substantially caused the victim’s injuries.

Burden of Persuasion

If the judge allows the defense, the 51 percent threshold applies. What does this 51 percent threshold mean? We’re glad you asked.

Victims are entitled to a proportional share of compensation if the tortfeasor was at least 51 percent responsible for the car crash or other injury. 

Assume Michelle changed lanes without signaling when Amanda, who was speeding at 20mph above the limit, hit her. If Michelle’s damages were $100,000 and the jury finds she was 30 percent responsible for the wreck, she’s entitled to $70,000 (70 percent of the requested amount). If, on the other hand, jurors conclude that Amanda was only 30 percent responsible, Michelle gets nothing.

During the trial, a Houston personal injury attorney can reduce the victim’s responsibility and increase the tortfeasor’s responsibility, at least in the eyes of jurors. In the above example, Michelle’s lawyer could call a witness who testified that she clearly turned her head and looked before she changed lanes. Another witness might testify that Amanda sped around a curve or over the hill, so Michelle couldn’t possibly see her. Such evidence convinces jurors to place all the responsibility on Amanda’s shoulders, or at least almost all of it. 

There’s another takeaway here as well. If an insurance adjuster or first responder said you were at fault for a car crash or other injury, always ask an attorney to evaluate your case. You don’t know how much compensation is available until you ask.

Despite legal loopholes like comparative fault, injury victims are entitled to substantial compensation. For a confidential consultation with an experienced personal injury attorney in Houston, contact Williams Hart & Boundas. We do not charge upfront legal fees in these cases.

Disclaimer: This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this newsletter are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.

The information contained in this blog may or may not reflect the most current legal developments. Accordingly, information in this blog is not promised or guaranteed to be correct or complete, and should not be relied upon as such. Readers should conduct their own appropriate legal research.


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