“I was going a little over the limit.” “I looked down at my phone for a second.” “I should have seen the wet floor.” People talk themselves out of valid claims every day because they believe that sharing any fault means having no case. In Texas, that is simply wrong.
Proportionate Responsibility
Texas follows a system called proportionate responsibility, set out in Chapter 33 of the Civil Practice and Remedies Code. The jury (or, in a settlement, the negotiating parties) assigns a percentage of responsibility to everyone involved — the defendant, the plaintiff, and sometimes third parties who are not even in the courtroom. Your recovery is then reduced by your own percentage.
The rule has one hard edge, often called the 51% bar: if your share of responsibility is found to be greater than 50%, you recover nothing. At 50% or less, you recover, reduced by your share.
Your damages are found to be $200,000. The jury decides the other driver was 80% responsible and you were 20% responsible.
- You recover 80% of $200,000 = $160,000.
- At 50/50, you would recover $100,000.
- At 51% your fault, you would recover nothing.
Why Insurers Love This Rule
Every percentage point of fault the adjuster can pin on you is a percentage point off the check. That is why the recorded statement matters so much, why the adjuster asks “how fast were you going?” and “were you wearing your seat belt?”, and why an early admission — even a polite apology at the scene — is so costly. Fault allocation is argued, not discovered, and the insurer argues it from day one.
Common Fault Arguments, And The Answers
- “You were speeding.” Speed matters only if it contributed to the crash. A driver who runs a red light is not excused because the person he hit was going 38 in a 35.
- “You weren’t wearing a seat belt.” Since a 2015 Texas Supreme Court decision, seat-belt non-use can be considered — but the defense must prove it actually worsened the specific injuries.
- “You should have seen the hazard.” In premises cases, the question is whether the condition was open and obvious and whether the owner still had a duty to fix it. A wet floor with no warning sign is generally the owner’s responsibility to address, not yours to anticipate.
- “You were on your phone.” Phone records cut both ways. We subpoena the other driver’s too.
The Empty Chair
Defendants can also point at people who are not in the case — a phantom driver, a bar that over-served, an employer — to shift responsibility away from themselves. Naming every responsible party in the lawsuit, rather than letting the defendant blame an empty chair, is a core part of protecting your recovery.
What This Means For You
Do not evaluate your own fault. You are not an objective witness to your own crash, and you are not the one who decides the percentages. Tell your lawyer everything, including the parts that worry you. We have won cases for clients who were certain they were to blame and recovered substantial sums for clients who were genuinely partly at fault. The rule exists precisely because real accidents are rarely one person’s fault alone.
An honest, free assessment of fault and value. No obligation. No fee unless we win.
Key Takeaways
- In Texas you can recover if you were 50% or less at fault; your recovery is reduced by your share.
- More than 50% at fault bars recovery entirely — which is why insurers push fault onto you.
- Never assess your own fault or admit it to an adjuster; that is your lawyer’s job to contest.
The Plummer Law Firm, PLLC
Articles are prepared by the firm’s legal team and reflect Texas law at the time of writing. They are general information, not legal advice about your case.
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