You’ve likely heard that you can file for compensation if you were in an accident that wasn’t your fault, but what if it was? Can you claim compensation if you were responsible?
In Texas, the answer is, potentially, yes.
Negligence laws vary by state, and this impacts how much compensation — if any — you’re entitled to.
There are two main types of negligence law: contributory negligence and comparative negligence, with the latter split into two further categories — pure comparative and modified comparative. There is one further type for a single state in the U.S., which we’ll dig into below.
Texas is a modified comparative state, which means that you can claim compensation if you are less than 51% at fault for your accident.
We look at the different types of negligence law, the negligence laws by state, and how these affect your ability to file a personal injury claim.
Want to see our graphic on the negligence laws by state? Jump there now!
What Are the Different Negligence Laws?
Contributory Negligence
Contributory negligence laws prevent plaintiffs from recovering compensation if they were at all at fault for their accident or injury — even if another party was negligent. The best way to illustrate this is with an example. Imagine you’re a pedestrian crossing a road. You fail to check for traffic before crossing or dart over the road instead of waiting for a stoplight. This causes you to get run over and sustain injuries. In a state with contributory negligence laws, you wouldn’t be able to claim compensation because your actions were negligent. It wouldn’t matter if the driver was speeding, distracted, or even intoxicated. The fact that you were partly at fault — and that you could have avoided the incident more likely than not if you hadn’t crossed the road the way you did — is enough to bar the possibility of recovering compensation entirely.
This can lead to potentially harsh outcomes, especially if an individual ends up with permanent, life-altering injuries resulting from a minor negligent action. As a result, contributory negligence has been criticized as archaic and unreasonable, even as early as 1957. However, several states still implement this negligence law.
See which states have contributory negligence laws.
Comparative Negligence
Comparative negligence laws allow plaintiffs to pursue compensation for damages, even if they were at fault.
There are two types of comparative negligence: pure and modified. Whether or not you can claim when you’re at fault depends on the type of comparative negligence adopted by the legislature. The amount of compensation you can receive will vary accordingly.
Pure Comparative Negligence
Pure comparative negligence is, in essence, the direct opposite of contributory negligence. In states with this negligence law, individuals injured in an accident can pursue compensation if the other party was negligent, even if the plaintiff was majorly at fault.
The amount of compensation you can receive will be reduced based on how much you are at fault. For example, if you are involved in a car accident that was 80% your fault, your compensation would be reduced by 80%, allowing you to claim the remaining 20% from the other party.
Thirteen states adopt pure comparative negligence laws, including California, Kentucky, and New York.
Modified Comparative Negligence
Modified comparative negligence is similar to pure comparative negligence. It allows plaintiffs to file a personal injury claim if they are partly responsible for their accident — but only if their fault falls beneath a set threshold.
The fault cap for states with modified comparative negligence laws varies between 50% and 51%, which means that you can only recover compensation if you are 49% or less, or 50% or less at fault, respectively.
The majority (33) of U.S. states have modified comparative negligence laws, with 23 following a 51% threshold and 10 having a 50% cap.
| State | Modified Comparative Negligence Threshold |
| Arkansas | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Colorado | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Connecticut | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Delaware | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Georgia | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Hawaii | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Idaho | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Illinois | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Indiana | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Iowa | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Kansas | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Maine | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Massachusetts | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Michigan | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Minnesota | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Montana | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Nebraska | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Nevada | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| New Hampshire | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| New Jersey | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| North Dakota | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Ohio | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Oklahoma | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Oregon | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Pennsylvania | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| South Carolina | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Tennessee | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Texas | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Utah | Plaintiffs can’t recover compensation if they are found 50% or more at fault. |
| Vermont | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| West Virginia | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Wisconsin | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
| Wyoming | Plaintiffs can’t recover compensation if they are found 51% or more at fault. |
See which states have comparative negligence laws.
What Are the Negligence Laws by State?
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What Is Slight-Gross Negligence Comparative?
Just one state, South Dakota, does not follow either contributory comparative or comparative negligence laws. Instead, it has its own type of negligence law, called slight-gross negligence comparative. This law states that individuals can recover compensation if their fault was “slight” and the other party’s fault was “gross.” If the plaintiff’s fault is slight in comparison to the negligence of the other party, compensation will be reduced accordingly.
If it’s not clear that there is a distinction between the plaintiff’s fault and the other party’s fault, the plaintiff cannot recover any damages.
In practice, this negligence law is effectively a hybrid between contributory and comparative negligence. But what constitutes “slight”?
In one South Dakota Supreme Court case, a plaintiff was involved in an auto collision with a train and pursued a personal injury claim against three parties. Combined, the defendants were found to be at 70% fault, with the plaintiff 30% responsible for — among other things — failing to see the train and failing to brake or take other evasive action.
For this case, “slight” was defined as “small of its kind or in amount; scanty; meager”, and the test for determining this was to compare it with the negligence of all defendants. The Supreme Court ultimately stated that a “finding of 30% contributory negligence is more than slight in comparison”.
Filing a Personal Injury Claim in Texas
As the Texas legislature follows the modified comparative negligence law, plaintiffs can recover compensation if they are found 50% or less at fault for their accident. This is also known as the “51% rule”, as individuals cannot claim if they are 51% or more responsible.
A court hearing will determine the percentage of fault of each party. During this hearing, the court will consider the actions of all parties and the extent to which they contributed to the accident.
To ensure the outcome is in your favor, having an experienced lawyer advocate for you is crucial. Your Texas personal injury lawyer will gather and present evidence to support your version of events, make your case, and prevent the other party(s) from ascribing more fault to you.
Have you been in an accident in Texas that was your fault? Our personal injury lawyers in McAllen and San Antonio can advise you on whether you can claim compensation and how much you might be entitled to. For a no-obligation review of your accident, contact our experienced personal injury attorneys today.
