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Personal Injury

  • Comparative Negligence

Comparative Negligence

  • What is comparative negligence (aka proportionate responsibility) in Texas?
  • How are damages calculated under comparative negligence?
  • What are the elements of comparative negligence?
  • In 1973, Texas adopted a proportionate responsibility law, commonly known as “modified comparative negligence [1]”. The law lays out rules for courts to use in allocating blame between multiple parties in a lawsuit. In a personal injury lawsuit where there’s more than one reason for the plaintiff’s injury, the Court can assign fault accordingly. If there are multiple defendants in the lawsuit, the court can assign each one a percentage of blame. And if the plaintiff is partially at fault for their own injury, the court can assign a percentage of fault to the plaintiff as well. If the court awards damages to the plaintiff, each defendant’s percentage of blame is also the percentage of the damages the defendant will be ultimately responsible to pay. For example, if the Court finds the plaintiff 20% at fault for their own injury and the defendant responsible for the remainder, the court will deduct the plaintiff’s 20% and the defendant will only be responsible for 80% of the damages awarded. It’s extremely important to note if the court finds the plaintiff more than 50% responsible for their own injuries, the plaintiff will not be awarded any damages at all [2]. In other words, if the plaintiff is more responsible for their injury than the defendant, recovery is barred.

    In a personal injury lawsuit, the court calculates damages based on each party’s share of blame for the injury. Below are a few examples to illustrate how courts use comparative negligence:


    1. Say two people, Anna & Ben, get into an accident and Anna is injured. The amount of damages Anna suffered is $10,000. If the Court determines that Anna was 30% at fault and Ben was 70% at fault, each party will only be responsible for the portion they’re at fault for. Since Anna was found to be 30% at fault for the accident, the amount Anna can recover will be reduced by the amount she’s responsible for. Therefore, Anna can only recover $7,000 from Ben because he’s only 70% responsible for the damages.
    2. Anna & Ben get into an accident and Anna gets injured. The amount of damages Anna suffered is $10,000. Unlike example #1, the Court determines that Anna was 60% at fault and Ben was 40% at fault. Here, because Anna is more at fault for the accident than Ben is, she cannot recover anything. The 50% rule comes into play: when a plaintiff is more than 50% at fault for their injury, by law they cannot recover any money from another party.
    3. Anna, Ben, & Carla get into an accident and Anna gets injured. The amount of damages Anna suffered is $10,000. The Court determines that Anna was 5% at fault, Ben was 75% at fault, and Carla was 20% at fault. Because there are two defendants who caused Anna’s injury, she can recover damages from both defendants; however, she’ll only be able to recover 95% from them since she’s responsible for 5%. Here, Ben and Carla did not act together to cause Anna’s injuries, but because Ben is more than 50% responsible for Anna’s injuries, he can be held jointly and severally liable for 95% of Anna’s injuries. Under the theory of joint and several liability, Anna can recover the full 95% of damages she’s owed from Ben even though Ben is not responsible for the full 95%. Any defendant who’s more than 50% at fault can be held responsible for the entire amount of the plaintiff’s judgment, but that defendant then has the right to get paid back (contribution) from the other defendants for their respective portions. If Ben pays Anna the full $9,500 she’s owed, Ben can then sue Carla to pay him back by contributing the amount she’s responsible for (which is $2,000 in this example). Alternatively, if multiple defendants work together in concert to cause the injury, they can both be held jointly and severally liable. In this example, if Ben & Carla had worked together to cause Anna’s injuries, they would both be held jointly and severally liable which means both Ben and Carla could be held individually responsible for the full amount of damages (95%).

      1. Example #3 would have a different result if the plaintiff (Anna) was more at fault than one of the defendants (Ben & Carla). In example #3, Anna was only 5% at fault; now let’s say Anna was 45% at fault, Ben was only 20% at fault and Carla was 35% at fault. In this example, Ben and Carla still aren’t working together to cause Anna’s injuries. Because both defendants were less than 50% at fault, they can only be held accountable for the damages they’re responsible for. Meaning, Anna can only recover 20% from Ben and 35% from Carla, nothing more. If a defendant’s negligence is less than 50%, and the defendants were not acting together in concert, there is no joint and severally liability and each defendant is only responsible for their own portion of fault.
    A few other things to note about comparative negligence:
    • When using comparative negligence to apportion blame, the necessary elements are the same as in any other negligence action (duty, breach, proximate cause, & damages). So, if the defendant wants to prove the plaintiff or someone else was also at fault, or if the plaintiff wants to add another defendant- all four elements of negligence must be established for that additional party.
    • In lawsuits that involve multiple plaintiffs, recovery for one plaintiffs is sometimes dependent on whether another plaintiff can recover. When the primary plaintiff of an accident is not allowed to recovery because of his or her own negligence, secondary plaintiffs are sometimes also barred even though they were not, themselves, negligent. For example, in 1984 the Texas Court of Appeals held in Dawson v. Garcia that because the main plaintiff was more negligent than the defendant (and therefore, barred from recovery), the third-party plaintiff who suffered mental anguish was also barred from recovery. In Dawson, the main plaintiff and the defendant were in a car accident where the main plaintiff was killed and the third-party plaintiff claiming mental anguish was a passenger in the main plaintiff’s car [3]. The jury in Dawson determined that the main plaintiff was responsible for 75% of the damage and the defendant was responsible for 25% [4]. Here, the main plaintiff’s percentage of negligence was higher than the defendant’s percentage, so the 50% rule applied and prohibited the plaintiff from recovering any money. Because the main plaintiff was barred from recovery, the additional third-party plaintiff who suffered mental anguish was also unable to collect any money damages.
    • Prior to the adoption of comparative negligence, Texas followed the common-law rule of contributory negligence which meant if the plaintiff was partially responsible for their injuries (even only 1% responsible), they couldn’t recover any money. The courts realized this “all or nothing” approach to recovery was a bit harsh, which is why Texas ended that law and adopted comparative negligence.

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