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If your employer is a non-subscriber, they cannot claim the contributory negligence defense.

When a worker is injured and their employer is a non-subscriber, often the employer will attempt to intimidate the injured worker from filing a lawsuit by suggesting that the worker was partially responsible for their own accident and that this will prevent them from recovering compensation. The theory behind this is an old legal defense called contributory negligence. While still a valid defense in a few states and the District of Columbia, contributory negligence is not a defense employers are allowed to use in Texas, or 45 other states.

If have been around children your will instantly recognize the contributory negligence argument. Invariably when two children get into a fight, parents will ask who started the fight. Regardless of who fesses up, that child will invariably say that the other child did something too. That in a nutshell is contributory negligence. Many years ago, employers were allowed to use this defense, and their argument was essentially, "Yeah, we did something bad, but so did the employee, so the jury should give him less money." That defense rarely works for children and it has rightly been outlawed by most of the states in this country as it pertains to work injuries.

Texas-based work injury attorney Michael Grossman will explain the history of this defense, its rise and fall, and what it means to non-subscriber work injury cases in Texas today.


Questions answered on this page:

  • What is contributory negligence?
  • How was contributory negligence traditionally used by employers to avoid paying injured workers?
  • What circumstances led to the defense being taken away from Texas employers?
  • How can an experienced work accident attorney help with your non-subscriber work injury case?

The Basics

Contributory negligence (also referred to by lawyers as "contrib") is a defense argument. A defense argument is an argument used by an employer in the following way: the employer's negligence results in someone getting hurt, the injured party sues them, the employer is permitted to make arguments against the injured person in order to lessen the amount of compensation that the court makes the employer pay.

Contrib is a defense wherein the alleged wrongdoer essentially says, "Yeah, I was negligent, but so was the injured person, so I shouldn't have to pay for all of their injuries." The implication is that if it were not for some tiny negligence on the part of the injured worker, the accident would not have occurred at all, which have rendered the employers negligence irrelevant, so the employer should not be on the hook for their negligence.

For example, suppose that a worker works in a really important research facility that is surrounded by an alligator filled moat and a drawbridge with no handrails. An employee is walking from the parking lot to the draw-bridge over the moat when they get a call on their phone. The employee gets so involved in their conversation that they accidentally step off the drawbridge and into the alligator-filled moat, where they are promptly attacked by alligators.

When they sue, the employer uses a contributory negligence defense, which says, "Sure it's really dangerous to keep an alligator-filled moat on the property and we probably should have had handrails on the drawbridge, but the employee never would have fallen in if they didn't answer their cell phone." In the jury room, the jury says, "Well they shouldn't have alligators and it's really dangerous not to have handrails, but if it weren't for that cell phone call, the accident wouldn't have happened, so the employers are right, their alligators and lack of handrails aren't to blame." This is how the contributory defense would allow minor blame on the part of a victim to prevent the liable party from having to pay any compensation.

In theory, the defense makes a bit of sense; it wouldn't be fair for a defendant to pay 100% of the costs of an injury if they only partially contributed to the negligence that created the injury. And, in theory, the effect of a defendant successfully using the contrib defense is that it enables them to pay less for the harm they cause.

The reality is that, throughout history, the effect of employers using this argument was far more disastrous. Most jury trials (in the 1800s and early 1900s; a time when both statutory and common law were stacked against injured workers) wherein the contrib defense was used would result in the jury completely taking the side of the employer. In other words, if the employer could argue that the injured worker was slightly negligent, then the jury would put all the fault on the injured worker, and they would not be compensated for their injuries.

How it Work In The Modern Era of Texas Work Injury Law

When Texas lawmakers created our state's modern work injury laws, they sought to provide a safe haven for employers who opt into workers' comp, and they essentially wanted to punish those who opt out. So, if an employer buys workers' comp coverage, the law grants them immunity from most lawsuits and the employee gets their injuries covered no matter who was at fault, but the employer still comes out on top since they cannot be sued, enabling them to pay the bare minimum.

However, when an employer opts out of workers' compensation (making them a non-subscriber), said employers can still be sued, but our lawmakers didn't want them to have their cake and eat it too by way of opting out of workers' comp (and therefore not pay into the system), yet still being able to argue things like contributory negligence and--in doing so--being let off the hook if a worker is injured on their watch.

As a result, the statutory language of the Texas Workers Compensation Act (the law that creates our state's modern work injury laws) specifically forbids employers from using certain "silver bullet" defenses, and the contributory negligence defense is one of the defenses that the Texas legislature put on the chopping block. This way, employers are encouraged to opt into workers' comp coverage to avoid the whole mess of lawsuits altogether, because if an employer chooses to be a non-subscriber, they can be sued, and most of their best arguments have been taken away from them.

Here, you can read about all of the defenses that employers can no longer use against injured workers.

What Can They Argue Against You?

As we said, Texas employers cannot argue that a worker was contributorily negligent in an attempt to shift some of the blame away from the employer. But that doesn't mean that they can't make any arguments against an injured worker. The main arrow in their quiver is the defense argument known as "sole proximate cause." In the sole proximate cause defense, they are not saying that an injured worker was also negligent, they're saying that the worker was the only one who was negligent; that they alone are responsible for their injuries. If successful, this argument is a deathblow to a Texas work injury case.

Here, you can read about the defenses that employers can use against injured workers.

An Experienced Texas Non-Subscriber Work Injury Attorney Can Help

In a non-subscriber case, with the lack of contributory negligence and sparse defenses they can use, it may seem like Texas' workplace injury laws make it easy for your attorneys to prove that your employer is liable. However, this actually makes your case, as a whole, harder. This is due to the fact that if your employer loses a little, they lose it all. As such, they can't give an inch or they will lose entirely, which results in your employer embarking on a witch-hunt as they desperately search for any evidence they can use to make you look bad or to shift all of the blame onto you.

At Grossman Law Offices we have been helping to safeguard the rights of injured Texas workers for the past 25 years. In that time, we have represented hundreds of injured workers, and we know how to avoid your employer's counter-arguments and attacks while building the strongest case possible in your favor. Our attorneys are available any time, day or night, to provide a free consultation regarding your injuries at (855)326-0000.


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