Comparative Fault in Texas Personal Injury

Texas applies “modified comparative fault” with a 51% bar to personal injury cases. This rule has enormous consequences for your case: if a jury finds you 50% or less at fault for your injury, you can still recover, but your damages are reduced by your percentage of fault; if a jury finds you 51% or more at fault, you recover nothing. Insurance companies, defense lawyers, and even your own treating doctors can be pressured to assign you blame to push your fault percentage higher. A Texas personal injury lawyer at McFarlane Law knows how to defeat these tactics and present your case in the best light.

How the 51% Bar Works in Practice

Texas’s modified comparative fault rule is codified at Texas Civil Practice & Remedies Code Chapter 33. The fact-finder (judge or jury) assigns a percentage of fault to each party and to any non-party submitted under the responsible-third-party rule. If your assigned fault percentage is 50% or less, your damages award is reduced by your fault percentage — so a $1 million damages finding with 30% fault becomes a $700,000 net recovery. If your fault percentage is 51% or more, you receive nothing. This makes the difference between a $700,000 recovery and zero potentially turn on a single percentage point. McFarlane Law works hard to keep our clients’ fault percentages as low as possible at trial.

Joint and Several Liability

Texas Chapter 33 also governs joint and several liability — when one defendant pays for another defendant’s share of damages. Generally, a defendant whose percentage of fault is greater than 50% is jointly and severally liable for the entire judgment (subject to certain exceptions). A defendant whose percentage of fault is 50% or less is severally liable only — meaning they pay only their proportional share. This rule matters enormously when one defendant has deep insurance or assets and another defendant is judgment-proof. Strategic case structure — including which defendants to sue and which to designate as responsible third parties — can dramatically affect collectibility.

Responsible Third Parties and Empty Chair Defendants

Texas defendants frequently designate “responsible third parties” — non-parties whose conduct allegedly contributed to the injury. The fact-finder can then assign fault to those non-parties even though they are not in the lawsuit. If significant fault is assigned to a non-party, the recoverable damages from the named defendants are reduced accordingly. Common examples: a phantom driver in a multi-car accident, an unidentified contractor on a construction site, or a manufacturer that has gone out of business. McFarlane Law manages the responsible-third-party process carefully, often filing strike motions when designations are improper and sometimes adding the third party as a real defendant when service is possible.

Tactics for Minimizing Your Fault Percentage

Defendants and their insurers will try to push your fault percentage as high as possible. They will argue you were speeding, distracted, not wearing a seatbelt, ignored warning signs, failed to mitigate damages, or pre-existing conditions caused your symptoms. Defeating these arguments requires careful evidence development: accident reconstruction experts, biomechanical engineers, vocational experts, and medical experts who understand causation. McFarlane Law’s litigators present cases with the evidence and expert testimony needed to keep our clients’ fault percentages low — and to maximize the net recovery after Chapter 33 reduction.

Related Practice Areas

Related: types of personal injury cases Texas, statute of limitations, how settlements work, case value. Hub: Texas personal injury lawyer.

Talk to a Texas Injury Lawyer Today

A few percentage points of fault can be the difference between a substantial recovery and nothing. Call McFarlane Law for an experienced trial team. Austin (512) 222-4900, Odessa (432) 803-5000.