In some accidents, where only one person is to blame, a jury finds that person 100% at fault for the injuries they caused and forces them to pay for 100% of the victim's losses.

However, few situations are really that black and white. In most cases, actually, multiple people—sometimes even the victims themselves—are at least partially to blame. Thus some set of rules must tell juries how to divide fault between the parties, which is an issue of proportionate responsibility.

There are a few different doctrines (AKA theories or rules) on proportionate responsibility and the division of fault, and each state has chosen one of those doctrines to apply to cases litigated within its borders. The available doctrines a state can choose are:

• contributory negligence
• pure comparative fault
• modified comparative fault

So how do we do it in Texas?

Answer: In Texas we use the doctrine of modified comparative fault, which means that the defendant pays less when the victim was also partially to blame and they pay nothing if the victim is mostly to blame.

The Rule

If a jury finds the plaintiff (injured party) MORE THAN 50% responsible for the accident, the plaintiff loses flat out and gets paid nothing.

But if the jury finds the plaintiff 50% OR LESS responsible for the accident, the plaintiff wins. The defendant (bad guy who got sued) must then pay the plaintiff the percent of the damages attributed to the defendant.

Now Let's See Where/How the Modified Comparative Fault Rule Is Used in Court

The modified comparative fault rule is applied at the very end of a trial. Two things must happen before that:

• First, the jury determines the amount of the damages (losses) incurred by the plaintiff.
• Second, the jury determines the percentage of fault to put on each party to the lawsuit.

After those jury decisions the court applies the modified comparative fault rule to determine how much, if anything, the defendant must pay.

To see how it works in practice, consider these examples:

Example 1: Rachel is hit by a drunk driver who ran through a red light and T-boned her car. She suffers multiple broken bones. She sues the defendant, and the defendant argues that Rachel is also responsible for her injuries because she was texting while driving. The case is taken to trial, the evidence is presented, and both sides rest. First, the jury finds that Rachel has $500,000 in losses. Second, the jury determines that the defendant is 90% to blame and Rachel is 10% to blame. Applying the first part of modified comparative fault doctrine we see that Rachel is not more than 50% responsible, so she wins her case and the defendant must pay her the percent of the damages attributed to him. The jury put 90% of the blame on the defendant so he must pay 90% of the $500,000 damages, which is $450,000. Thus, the end result is that Rachel won her case and the defendant owes her $450,000.

The net effect of applying the doctrine of modified comparative fault is that Rachel took a bit of a discount on what she would get paid because the jury found her partially at fault. But she was still able to win.

Example 2: Jinn is crossing a busy highway on foot. She runs into the path of an oncoming car and is hit. She suffers multiple broken bones. Jinn sues the defendant, and the defendant argues that Jinn is responsible for her own injuries since she ran out in front of his car, violating his right of way. Jinn's lawyer does some digging and finds out that the driver of the car was going 1 mph over the speed limit. He decides to argue that this technical violation of the posted speed limit is the primary reason the accident happened. The case is taken to trial, the evidence is presented, and both sides rest. First, the jury finds that Jinn has $500,000 in losses. Second, the jury determines that the defendant is 5% to blame and Jinn is 95% to blame. Applying the doctrine of modified comparative fault, we see that Jinn is more than 50% to blame, so she loses her case flat out.

The net effect of applying the doctrine of modified comparative fault is that Jinn loses her case. The fact that her attorney could convince a jury that the defendant did SOMETHING wrong doesn't really matter. The fact that she has $500,000 in losses also doesn't really matter. What matters is that she was mostly to blame and therefore lost.

How Defendants and Insurance Companies Weaponize Modified Comparative Fault

In any scenario where a lawyer or insurance company for the defendant can make an argument that you are also partially to blame for your accident, they'll give it a try. Why wouldn't they? If they can convince a jury you're more than 50% at fault, even if their client also did something wrong, they won't have to pay you a penny.

Since most cases don't go to trial, they will mostly bring it up during settlement negotiations in the form of, "Here's what a jury might do." They want to intimidate you into taking a very small amount of money and forego your right to trial.

How A Good Texas Personal Injury Lawyer Will Fight Back

We realize that no one is perfect. Plenty of our clients have made mistakes that contributed to their accidents. But that doesn't mean that other parties shouldn't be brought to justice when they're primarily to blame. Our job is not only to find evidence that the defendant is truly at fault, but to overcome their illegitimate claims that your marginally unclean hands means that you're not entitled to compensation at all.

But it all really comes down to how it's argued in court (or how it would theoretically be argued if the case went there). That's why plaintiffs represented by an experienced attorney stand to receive a larger settlement or recovery than people who are not represented.

If you would like to discuss your case with one of Texas' most experienced personal injury attorneys, call Grossman Law Offices for a free consultation.