One of the hardest questions to answer in a personal injury lawsuit is how much a claim is actually worth.
If a plaintiff can prove the defendant was legally responsible for the plaintiff’s injury, a judge or jury can order the defendant to pay monetary damages. But what if the defendant can prove the plaintiff was at least partially to blame for the accident or event that led to the injury?
Can a Plaintiff Win If the Defendant Is Only 99% Liable?
Historically, common law adhered to the principle of “contributory negligence” in tort claims like personal injury claims.
Under this rule, a plaintiff could not recover any damages if the injured party contributed in any way to their own injury. In other words, if a jury determined the defendant was 99% responsible for the plaintiff’s injuries, but the plaintiff was still 1% responsible, then the plaintiff could recover no damages at all.
A small number of U.S. states still adhere to this contributory negligence rule, but the majority have adopted some form of comparative negligence. With comparative negligence, the injured plaintiff is still able to recover some damages even if he or she is partially to blame for their injury. Basically, the jury apportions liability and decides on a damage award, which the judge then reduces based on the plaintiff’s comparative negligence.
Most states apply a “modified” comparative negligence rule, where the plaintiff is legally barred from recovering damages if his or her own liability exceeds a certain threshold, either 50 or 51%. Texas is among the states that follow a 51% rule.
How Texas Defines “Proportionate Responsibility”
Specifically, it states a plaintiff “may not recover damages if his percentage of responsibility is greater than 50%.” The trier of fact—generally a jury in personal injury
cases—must “determine the percentage in responsibility, stated in whole numbers,” for each party to a given accident. This may include third parties who are not directly involved in the lawsuit.
In some cases an additional defendant can arise. Joseph M. Schreiber
, a personal injury attorney with Schreiber | Knockaert law firm in Houston, uses the example of an injury at the hands of a bouncer at a bar. You file suit against the bar and within the response deadline they say the bouncer was a contractor and designates them as a responsible third party. You then have to sue the bouncer before the statute of limitations period expires.
“You can have a situation where a plaintiff is 40% responsible, defendant number one is 20% responsible, and defendant number two is also 40% responsible,” he explains. “Even though the plaintiff and one defendant have the same amount of responsibility, both defendants still have to pay their portions.”
If the award was $100,000, defendant two would pay $40,000 to the plaintiff and number one would pay $20,000.
This formula can get much more complicated depending on the situation and parties involved. If there are multiple defendants, but one is deemed more than 50% at fault, that lone defendant pays the whole award to the plaintiff, minus the plaintiff’s percentage of fault.
Keep in mind, even in cases where a plaintiff feels they have an open-and-shut case, the defense will still likely attempt to prove proportionate responsibility in the hopes of reducing (or possibly eliminating) a damage award. Schreiber says it’s also not unusual that a defendant tries to make a martyr out of one of the parties involved, either another defendant or one of the plaintiffs. This is why it is always important for a plaintiff to hire an experienced Texas personal injury lawyer
who knows how to deal with proportionate responsibility defenses.
“The biggest takeaway is get to a lawyer early,” Schreiber says. “In most cases, there’s a two-year statute of limitations, and there are a lot of nuances involves. There are ways to deal with the nuances, but they take a fair amount of investigation first, and that takes time. A lot of times you’re looking at six or seven months.
“We have more people than I’d care to count call us a few days before the limitations period runs out. I have to say, ‘I can’t do it because we need a certificate of merit and that takes three months. Why didn’t you call me right away?’ It all takes a while, and lawyers need lead time.”