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Negligence in Texas: It’s Not Black and White

One of the most widely-held misconceptions about jury trials in Texas is that the jury decides who wins the case.  In fact, jury trials in Texas utilize a system of special issues – questions which relate to the showings required based upon the claims asserted in the lawsuit.  The judge, based upon the jury’s answers to these questions, decides who wins.  Winning, however, can be a relative term when it comes to claims of negligence.

This is because Texas applies a system of so-called comparative negligence called “proportionate responsibility.” See generally Chapter 33, Texas Civil Practice & Remedies Code. Under this system, the jury compares the fault of each party, assigning a literal percentage of blame to any party as to whom there is some evidence of negligence. Any damages awarded by the jury are then reduced by the percentage of the plaintiff’s own negligence assigned by the jury.

As an example, let’s look at a hypothetical car wreck.  Let’s say that you are driving on a highway in the middle lane.  You signal for a left turn, look in your rear-view mirror, and then move into the left hand lane. You are promptly rear-ended by a vehicle that had been travelling in that lane, and suffer severe injuries. You sue the driver who rear-ended you. At trial the evidence shows that you looked in the rear view mirror, but did not turn your head to check your blind spot, and that you might have seen the car in that lane if you had.  The evidence further establishes, however, that the driver in the left-hand lane was driving far in excess of the speed limit.

Let’s assume, based upon these facts, that a jury found you 30% negligent and the other driver 70% negligent. Let’s further assume that the jury awarded you $100,000 for your injuries. As plaintiff you would only recover $70,000, however, because you were 30% at fault for the accident. This is so, because under Texas’ system of proportionate responsibility, the law provides:

[A] liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.

Tex. Civ. Prac. & Rem. Code 33.013.

In addition to the modification of damages based upon the percentage of fault, proportionate responsibility in Texas also applies a so-called “51% bar rule.” Under this rule, if a party is 51% (or more) responsible for his or her injuries then that party is not allowed to recover any of his or her damages. See Tex. Civ. Prac. & Rem. Code 33.001 (“In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.”). Thus, in the hypothetical above, if the jury determined that you, as plaintiff, were 51% responsible for the accident, and the speeding driver was 49% responsible, you recover nothing, even though your damages are exactly the same (though if the jury found you, as plaintiff, 51% responsible, they would not even be asked to decide the damages).

Therefore, succeeding in a negligence case in Texas is not just about winning. Where applicable, it’s also about seeking to minimize the jury’s findings as to your own negligence, while maximizing the findings as to the defendant.
An experienced trial attorney can help steer your case through these troubled waters towards a maximum recovery.