If you have been injured as a result of someone else's negligence, your jury may be asked to decide if there was any fault on your part. This is called the law of comparative negligence in general, but in Texas it is known as the law of proportionate responsibility. This may explain why the adjuster on your case is telling you she will not settle your claim at full value because she thinks you were partly at fault. This article will help explain how comparative liability works and what it means to your case.


The question of fault is ultimately up to the trier of fact, which is either a judge or jury. Since most cases are tried before a jury, I will discuss liability in that context. At the conclusion of the evidence, the jury will be given what is called a jury charge and will be asked to retire to the deliberation room and come back with a verdict. One of the first things the jury will determine is which party was at fault and the degree of fault attributable to each party. The fault they apportion must add up to 100%. For example, if they find the Plaintiff 10% at fault, they must find the Defendant 90% at fault.


If the jury finds you, the Plaintiff, more than 50% at fault in the incident that caused your injuries you will not be entitled to any money from the Defendant. That's right, the law says that if you are more than 50% at fault, the Defendant does not owe you anything. If you are found to be 50% or less at fault, then you get to keep whatever the jury awards you in damages, minus your percentage of liability. So, if the jury finds you 40% at fault and awards you $100,000.00, you get $60,000.00.

This is actually an improvement of the rule from decades ago which said that if the Plaintiff was the tiniest bit at fault (1%), he recovered nothing. It is not as good, however, as a few other states which allow the Plaintiff to recover even if he is found to be 99% at fault. His award is reduced by 99% but at least he recovers something. There are many states that follow Texas' 51% rule and almost an equal number that follow a 50% rule. The popular thinking seems to be that if a Plaintiff is half or slightly more than half at fault, he does not deserve to recover anything.


The jury is not told the effects of their findings. The idea is to not let sympathy for either party affect their decision. If the jury has found the Plaintiff 50% at fault or less, they will be asked to determine the amount of money damages the Plaintiff should recover. They are told not to consider the percentage of fault in determining damages. The only time the jury gets a clue as to the effect of their fault determinations is when they find the Plaintiff more than 50% at fault. In that case, they are told not to answer any further questions. They thus return to the courtroom without calculating damages.


The jury is not always asked to determine if the Plaintiff should share in fault. It depends on the evidence presented at trial and whether a reasonable person could find any degree of fault on the Plaintiff. It is ultimately the Judge's decision whether the jury will be asked to determine if there is any fault on the Plaintiff. In almost every case in which both Plaintiff and Defendant were driving vehicles that were involved in a car wreck, the Plaintiff's fault will be in issue. By contrast, if the Plaintiff was a passenger, then his negligence would almost never be in issue. In some cases, the Defendant, as part of trial strategy, confesses fault and disputes only the amount of the damages. Of course, in that situation, the jury would not be asked to consider fault on the Plaintiff.


Premises liability cases are ripe for a defense strategy of putting blame on the Plaintiff. The main defense in almost every premises liability trial is to show the jury that the Plaintiff was more at fault than the Defendant store's employees because the Plaintiff should have been watching where he was going. If he had been more careful, he would have been able to see the wet spot on the floor or the defect that tripped him. They know that if the jury finds more than 50% fault on the Plaintiff, their client walks free.


Putting blame on the Plaintiff is part of almost every defense trial strategy. It is a chance for them to at least reduce the jury's award if not skate free altogether. Combating this strategy should be part of every Plaintiff's trial preparation. If your adjuster is alleging you were at least partly at fault, please call me for a free consultation.

Robert Rodriguez

Law Offices of Robert Rodriguez