Many times I have potential clients call me and say that they were injured in a car crash that was not their fault, but the “adjuster is putting some percentage negligence on me….” This is called comparative negligence. Under Texas law, comparative negligence may be a partial or total defense to a civil claim for negligence. Here’s how it works.
Comparative Negligence May Reduce Your Recovery
Let’s say you are involved in a car accident. You were approaching an intersection with a green light. As you enter the intersection, another vehicle turns left in front of you and a collision ensues. There are many factors that can go into a auto collision and resulting injuries: speed, seat belts, driver inattention, etc. The adjuster will investigate your claim. Although the adjuster may conclude that your had the right of way, the adjuster may also conclude that your were exceeding the speed limit. If that is the case, then the adjuster may conclude that you have some percentage of fault in causing the crash. For instance, the other driver might be 70% liable for the accident and you are 30% liable for the accident. This is called comparative or contributory negligence.
Whenever a negligence case goes to trial (such as a car wreck), the defendant may allege that there is evidence that your were also negligent and ask the jury to assign a percentage to each driver for their negligence. If the jury puts some percentage of negligence of the plaintiff, then the jury’s award will be reduced the damages award by the percentage of negligence assigned to the plaintiff. For example, let’s say the jury finds both the defendant and plaintiff negligent in the accident and assigns 30% negligence on the plaintiff and 70% percent negligence on the defendant.
If the jury also awards the plaintiff $10,000 in damages for personal injuries, then your recovery will be reduced by the percentage of negligence assigned to the plaintiff. So, if the plaintiff was assigned 30% negligence, then the plaintiff would only be entitled to recover $7,000 in damages.
Contributory Negligence as a Complete Defense.
Fifty percent (50%) is the magic number. If the plaintiff is assigned 50% or less, then the plaintiff is safe. However, if the plaintiff is assigned more than 50% negligence, then the plaintiff recovers nothing! That’s right: Nothing!!! That is true even if the defendant is also found to be partially negligent. In our prior example, if the plaintiff were found 70% negligent and the defendant were found 30% negligent, the plaintiff would recovery nothing. Not even the 30% assigned to the defendant.
That is why 50% is the magic number. If you are a plaintiff is a lawsuit, you need to make sure and hope that the jury does not find you more than 50% negligent. Otherwise, you will go home empty handed.
Just because an adjuster assigns a percentage of negligence to you does not mean they are denying your claim. It just means they are reducing your claim. But the adjuster’s decision is not binding. If you don’t like the adjuster’s determination, then your next option is to file a lawsuit and see just how strong they think there evidence is to support a claim of comparative negligence against you. Most of the time, adjusters use this legal theory to justify a low-ball settlement offer.