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Contributory Fault

Contributory FaultContributory fault, also called contributory negligence, is a strict rule that bars an injured person from recovering anything if they were even slightly to blame for their own injury. Texas does not follow that rule. A person who shares some of the blame can still recover, as long as their share of responsibility is not more than 50%. If an insurer is blaming you for a crash, the Houston personal injury lawyers at Abraham Watkins can explain where you stand. Call 713-222-7211 for a free consultation.

How Contributory Fault Compares to the Texas Rule

Most states have moved away from contributory fault to some form of comparative fault, which reduces a recovery instead of wiping it out. Texas is one of them and calls its version proportionate responsibility. Under Section 33.001 of the Texas Civil Practice and Remedies Code, recovery is barred only when the injured person’s share of responsibility is greater than 50%, a cutoff often called the 51% bar rule. At 50% or less, Section 33.012 reduces the damages by that percentage.

Using $100,000 in damages as an illustration, the two rules play out like this:

Injured person’s share of fault Under contributory fault Under the Texas rule
0% $100,000 $100,000
10% $0 $90,000
50% $0 $50,000
51% $0 $0

That column of zeros is the point of contributory fault: any share of blame at all ends the claim. Under the Texas rule, the recovery shrinks one percentage point at a time instead. You may also see the term “compensatory negligence.” It isn’t a legal term, and people who use it usually mean one of these two rules.

How a Texas Jury Assigns Your Share of Fault

Because the Texas rule turns on percentages, how those percentages are assigned matters as much as the rule itself. The trier of fact (the jury, or the judge when there is no jury) assigns each share in whole numbers. Section 33.003 of the Civil Practice and Remedies Code divides responsibility among:

  • each claimant, meaning the injured person bringing the claim;
  • each defendant;
  • each settling person, meaning anyone who has already settled; and
  • each responsible third party who has been designated in the case.

Responsibility can be spread across everyone on that list, not just split between two drivers. In a multi-vehicle truck accident, for example, shares can go to the truck driver, the trucking company, and another motorist, which can leave a smaller share for the injured person. No one on the list, including the injured person, can be assigned a share unless the evidence supports it. When a settling person is on the list, the court also subtracts the total dollar amount of those settlements from the recovery.

Which States Still Use Contributory Negligence?

In 2013, Maryland’s highest court, then called the Court of Appeals, declined to abandon contributory negligence in Coleman v. Soccer Association of Columbia. A dissenting opinion in that case identified these jurisdictions as still using the strict rule:

  • Alabama;
  • Maryland;
  • North Carolina;
  • Virginia; and
  • the District of Columbia.

North Carolina, for example, still recognizes contributory negligence as a defense. Under Section 1-139 of the North Carolina General Statutes, the party asserting it carries the burden of proving it. A Houston resident hurt in one of these places may face a much harsher rule than Texas applies.

When an Insurer Says You Were Contributorily Negligent

If an adjuster says you were contributorily negligent, they’re pointing to something you did, such as going slightly over the speed limit or braking late. Motorcyclists often hear it after a crash that happened while lane splitting, which is illegal in Texas. Under the Texas rule, the real question is how large a share of the blame that conduct deserves. An adjuster’s percentage is a negotiating position, not a finding, because only the jury or judge decides the shares. You still carry the burden of proving the other side was negligent, so the evidence matters on both sides.

Your own words about the crash can become evidence on fault, so be careful with what you share. Do not give a recorded statement to an insurance company before hiring an attorney. And if an insurer asks for your full Social Security number, do not give it to them.

Evidence that can keep your share of the blame accurate includes:

  • witness accounts of what the other driver did;
  • photos showing where each vehicle ended up and the road conditions;
  • dashcam or nearby security camera footage; and
  • the police crash report.

Talk to a Houston Lawyer About Contributory Fault and Your Claim

Being told a car accident was your fault can feel like the end of the road, even when it is not. For 75 years, Abraham Watkins has represented injured Houstonians, and our board-certified trial lawyers can push back when an insurer tries to shift the blame. We believe everyone deserves access to high-quality legal representation without an upfront cost.

If someone is using contributory fault arguments to cut what your claim is worth, call 713-222-7211 or contact us today for a free consultation.

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