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How Does Modified Comparative Fault Work in Texas?

By: Mike Grossman, Texas Injury Attorney

How modified comparative fault applies in Texas:

In our series on proportionate responsibility, we now turn to the doctrine of "modified comparative fault." Below, we'll discuss what the doctrine is, how it's applied, and how our attorneys fight back against the insurance companies' attempts to deny your claims.

How modified comparative fault works.

In some states if a plaintiff is even 1% at fault, then the doctrine of "contributory negligence" kicks claimants' cases out entirely. However, under modified comparative fault, the plaintiff's claim is only reduced by the percentage point of fault the jury assigns the plaintiff . . . to a point. Here's how it works:

  • So long as the jury finds the plaintiff is only 50% or less responsible, the plaintiff's claim survives. Once the jury decides 1) what the plaintiff's damages are; and 2) what percentage the plaintiff's own negligence contributed to the incident, the damages will be reduced by the second amount.
  • If the jury decides the plaintiff was 51% or more responsible for the accident, the judge will permanently dismiss the plaintiff's claim and award $0.

Texas adopted this system in the mid-1980's and hasn't changed it much since then. It's not as harsh as contributory negligence, but it nonetheless means that if you have damages of $1,000,000 and a jury finds you 60% at fault, rather than recover $400,000 as in a pure comparative negligence state, you'll recover nothing.

How defendants and insurance companies use modified comparative fault.

Obviously, defense lawyers will aim to protect their clients by trying to get your case to the magical 51% of fault on you. That way, even if their client did something wrong, they won't have to pay you a penny.

In order to place themselves in the strongest position, the lawyers for the other side will always try to paint your behavior as the most negligent as possible. They'll crawl all over everyone's testimony to make you look as bad as possible. They'll try to ask leading questions to you in such a way that you might admit to doing things you didn't even do. Or, they'll try to find anyone to testify that you did something wrong or dig up something (phone records, medical reports) to make you look bad.

Since most cases don't go to trial, they're mostly trying to do this to gain bargaining power over you for settlement purposes. They want to intimidate you into taking a very small amount of money and forego your right to trial.

How your attorneys should fight back.

We realize that no one is perfect. Plenty of our clients have made mistakes that even slightly contributed to their accidents. But that doesn't mean that other parties shouldn't be brought to justice. Our job is to not only find evidence that the defendant is truly at fault, but undermine any illegitimate claims that you did something you shouldn't have. Some examples:

  • In a car wreck case, the defense lawyers cooked up this theory that our client had been texting while she was driving. They subpoenaed her phone records, and even though they showed no texting activity anywhere near the time of the incident, they tried to argue she was on her phone. To combat this, we hired a forensic examiner to download her phone's history around the time of the accident. He was able to show that she wasn't texting.
  • In a non-subscriber workplace accident case of ours, the client's employer claimed she was intoxicated when she was hurt at work. Indeed, intoxication is a defense in these cases, but our client was adamant she had no drugs or alcohol in her system. We were able to get testimony from several coworkers that they'd been with her the entire day prior to the accident and had witnessed ZERO behavior that would indicate the consumption of drugs or alcohol.
  • In virtually every first-party dram shop case, we are confronted with the very real issue that the drinker does bear some fault for the accident. However, we've been so successful in these cases because we show---among other things---that the bar is primarily responsible because of the impact of alcohol on a drinker's judgment and reaction times.

Don't let the insurance companies win by simply rolling over. Call us now at (855) 326-0000 for a free consultation.

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