States use different rules to apportion fault in personal injury cases. Contributory negligence is a legal doctrine under which a plaintiff recovers no damages if they are at fault for the accident in any way. Comparative negligence works differently — it apportions damages by fault rather than wiping out recovery entirely. In Texas and Louisiana, an injured victim may still recover even if they were partially at fault.
Understanding contributory negligence
Contributory negligence is the strictest standard a state can adopt. In a pure contributory negligence jurisdiction, a plaintiff cannot recover if they bear any fault for the accident. A plaintiff who is only 1% at fault would be barred from collecting the other 99% of damages otherwise owed to them.
The doctrine descends from old English law and was once the prevailing rule across many states. Only five jurisdictions still apply it:
- Alabama
- Maryland
- Virginia
- District of Columbia
- North Carolina
Most states abandoned the rule over time because it produces harsh results. Even the District of Columbia has softened it for certain vulnerable users, such as pedestrians and bicyclists. The remaining holdouts may eventually shift to comparative negligence as the majority of states already have.
Comparative negligence in personal injury lawsuits
Comparative negligence is a related tort principle with much different results. Unlike contributory negligence, it lets many plaintiffs recover even when they were partially at fault. States use two main versions.
Pure comparative negligence reduces a plaintiff’s total damages by their assigned percentage of fault, with no fault threshold. A plaintiff found 85% at fault can still recover 15% of their damages. Nearly one-third of states follow this approach.
Modified comparative negligence adds a cutoff. Under the 50 percent rule, a plaintiff recovers nothing if they are 50% or more at fault. Under the 51 percent rule, a plaintiff recovers nothing at 51% or more, but parties equally at fault may still recover. If the plaintiff’s fault stays below the threshold, recovery is still reduced by their percentage of fault — a plaintiff who is 35% at fault collects 65% of their damages.
What laws apply in Texas and Louisiana?
Texas and Louisiana both use comparative negligence rather than contributory negligence, but each uses its own version.
Texas applies modified comparative negligence. Under the Texas proportionate responsibility statute, a person may not recover if they are 51% or more at fault for their damages. Those assigned 50% or less can recover, subject to a reduction for their share of the blame.
Louisiana applies pure comparative negligence under La. Civ. Code art. 2323. A jury assigns the percentage of fault to each party, and the plaintiff’s damages are reduced accordingly. A plaintiff could recover even at 99% fault — though they would collect only 1% of their total damages.
How is the percentage of fault determined?
Determining who is at fault is a central step in any injury case. A single defendant may be to blame, multiple defendants may share fault, or the plaintiff may be partially at fault for their own harm. The trier of fact — usually a jury, or the judge in a bench trial — assigns each party a percentage of fault after weighing the evidence, including:
- Witness testimony about how the accident occurred
- Video or audio evidence of the accident
- Whether the plaintiff’s actions caused the accident or made it worse
- Whether the plaintiff failed to mitigate their damages
- Police testimony about the cause
- Expert testimony and accident reconstruction
Fault apportionment is far from an exact science and is often subjective. How the evidence is gathered and presented can move the percentages significantly.
Winning compensation in partial-fault cases
A defendant’s accusation of partial blame does not make it true. Many defendants raise a comparative fault defense as a matter of routine, and some use it as a tactic to force a low settlement. Even when a plaintiff is genuinely partly at fault, recovery may still be available depending on the circumstances. Compensation can include property damage, past and future medical costs, rehabilitation, pain and suffering, loss of consortium, and — in limited cases — punitive damages.
If a defendant is pointing the finger at you, an injury lawyer can review the case, test the fault allegations, and protect the compensation you are still entitled to recover.