After a crash or injury, insurance companies often try to pin blame on you. In Texas, they may use a rule called comparative negligence (also known as proportionate responsibility).
Comparative negligence can reduce your recovery or entirely wipe it out. We’ll discuss how fault is assigned in Texas, what the defense has to prove, why “coulda/shoulda” isn’t enough, and how the aggressive personal injury attorneys at Crosley Law can help keep you from being bullied into taking the blame.
What is comparative negligence in Texas?
Under Texas law, if more than one person contributed to an injury, a judge or jury assigns percentages of fault to everyone involved. A victim’s recovery is influenced by the percentage of fault assigned to them.
Under the Texas Civil Practice & Remedies Code, Chapter 33, if you’re more than 50% at fault, you cannot recover anything. If you’re 50% or less at fault, your recovery is reduced by your percentage at fault.
Example: If your losses total $100,000 and you’re found 20% at fault, your net recovery is $80,000. If you’re found 51% at fault, then you recover $0.
Comparative negligence is an affirmative defense. The defendant has to raise it and prove it by a preponderance of the evidence. Finger-pointing isn’t enough.
For comparative negligence to work in the defense’s favor, they must prove two things:
- You were negligent under the circumstances.
- Your negligence was a legal cause of your injury. In other words, harm wouldn’t have occurred if it hadn’t been for your actions, and the harm that happened was a foreseeable result of those actions.
Only proving negligence on your part is not enough. Your negligence must be proven to be a cause of your harm.
How is the percentage of fault decided in comparative negligence cases?
When assigning percentages, juries often rely on fairness and common sense. One frequently used benchmark is the “75/25 rule of thumb.”
Under this guideline, it is deemed fair that the person who created the danger should carry at least 75% of the fault. But for their conduct, there would have been no hazard to react to and no chain of dominoes falling.
Even when an injured person could have been more careful, a fair range for their share is generally 0–25% of fault, with 25% reserved for more extreme situations.
This framework applies across multiple scenarios including car crashes, pedestrian and bicycle collisions, falls, and malpractice cases involving misleading reassurances.
Real exceptions to the rule exist, though, such as a pedestrian darting into traffic or a cyclist veering suddenly into a travel lane. But if a person walked (not darted) or pedaled out predictably, the defense shouldn’t inflate ordinary behavior into something it wasn’t.
How comparative negligence can apply to common scenarios
No two personal injury cases are ever the same, but here are some general examples of incidents where comparative negligence might be sought and how the defense might pursue it.
Car vs. car: “You didn’t react perfectly” or “You were a little over the limit”
Typical defense arguments include minor speeding or delayed braking. The at-fault driver who created the danger (e.g., running a light, following too closely, unsafe left turn) should usually carry the majority of fault.
Small mistakes by the injured driver might justify 0–25% fault, only toward the high end when their conduct was on the more extreme side.
Car vs. pedestrian: “The walk signal expired”
Drivers must maintain a proper lookout and yield to pedestrians lawfully in a crosswalk. If the driver’s behavior set the danger in motion, a reasonable percentage of blame for the pedestrian is commonly 0–25%.
True “dart-out” cases are different, but walking out predictably across a street is not a dart-out.
Car vs. bicycle: “You were on the sidewalk, not the bike lane”
Motorists must watch for bicyclists and pass safely. A rider’s choice to use a sidewalk may be debatable but doesn’t give drivers a free pass.
Fair apportionment again tends to land in the 0–25% range unless the cyclist’s behavior was truly risky (for example, veering abruptly into traffic).
Falls (premises liability): “It was visible if you were paying attention”
Property owners must fix or warn about dangerous conditions they knew or should have known about. If they created or ignored a hidden or poorly marked hazard, they ultimately set the accident into motion. That generally means most of the fault remains with them.
Crosley Law gathers evidence that moves the needle
When you’re fighting an insurance company’s claim that you share the blame, evidence will make the difference.
At Crosley Law, we organize every case around three core pillars: liability, causation, and damages. Each piece of evidence we collect helps show who caused the harm, how it happened, and how it has affected your life.
Proving liability (who caused what)
The first step is showing who was truly responsible for your injuries. We dig deep into the facts, collecting and analyzing every detail that helps tell your story clearly and persuasively.
- Scene photos and video: Images of skid marks, debris, lighting, and signage often tell the story better than words can.
- Vehicle data and telematics: Modern vehicles often record key information like speed, braking, and steering input that can show exactly how a crash occurred.
- Surveillance and dashcams: Independent footage can stop finger-pointing in its tracks.
- Witnesses and 911 audio: Statements made right after an event carry weight. They’re fresh, honest, and often critical.
- Rules and standards: Traffic laws, property safety codes, and medical guidelines all provide context for what “reasonable” behavior looks like under the law.
Proving causation (why you were hurt)
Once liability is clear, we have to connect the dots between the defendant’s actions and your injuries. The defense may argue that your injuries came from something else or that your conduct caused the harm. That’s why we focus on clear, science-based connections.
- “But-for” analysis: We show that but for the other party’s conduct, your injuries would not have happened.
- Biomechanics: In more complex cases, experts explain how forces from the crash or fall caused specific injuries seen on your medical imaging.
- Medical timeline: We trace your symptoms and treatment back to the incident, ruling out other potential causes.
BLOG: How medical experts can make or break your personal injury case
Proving damages (how it changed your life)
Finally, we demonstrate how the injury has impacted your health, work, and quality of life. Insurance companies often try to minimize these losses but detailed, credible evidence helps the jury or adjuster see the full picture.
- Medical records and imaging: X-rays, MRIs, and doctor notes document physical harm.
- Functional testing: Evaluations like balance, neuropsychological, or range-of-motion tests quantify what’s changed.
- Work and economic losses: Pay stubs, employer letters, and vocational assessments show the real financial toll.
- Life-impact evidence: Photos, journals, and statements from loved ones show how pain, fatigue, and lost opportunities affect your day-to-day life.
RELATED: How “before and after” witness testimony can help your personal injury case
The insurance company playbook (and your countermoves)
Insurance companies are skilled at turning facts into excuses. Their goal is simple: to pay less by claiming you share the blame. We’ve seen their tactics and know how to counter them.
Play: “If you’d only braked sooner…”
Counter: Our experts use vehicle data, photos, and reaction-time analysis to show that the crash was unavoidable once the other driver created a no-win scenario.
Play: “You were going 5–10 mph over.”
Counter: A small amount of speeding doesn’t excuse a driver who runs a red light or turns left across oncoming traffic. We focus the jury on what really caused the collision.
Play: “You should have seen the spill.”
Counter: We prove how long the hazard existed, how poor lighting or design hid it, and why the property owner should have fixed it first.
Play: “Shared fault means small money.”
Counter: Even if a small percentage of fault is assigned to you, serious injuries still have serious consequences. We ground settlement value in medical proof and real-world impact.
Comparative negligence FAQs
What is comparative negligence in Texas?
It’s how Texas assigns percentages of fault when more than one person contributed to an injury. Your recovery is reduced by your percentage—unless you’re 51% or more at fault.
Who has to prove I was partly at fault?
The defense. Comparative negligence is an affirmative defense, so they must plead it and prove both negligence and legal causation.
Does going a little over the speed limit kill my claim?
Not usually. Minor speeding doesn’t excuse dangerous conduct by another driver. Juries look at what really caused the crash.
What if I didn’t see a hazard before I slipped?
Owners must fix or warn about dangers they knew or should have known about. Concealed or poorly marked hazards keep most fault on the owner.
What if the driver says I “darted” into traffic?
True dart-outs can raise a pedestrian’s fault. But walking out predictably is different. Video and witnesses usually resolve this.
How do I protect my case?
Get medical care, follow your doctor’s advice, keep records, and talk to a lawyer early so evidence can be preserved.
What Crosley Law does differently
At Crosley Law, we strive to be trial-ready with every case. That focus shapes how insurers value your claim.
When we take your case, we provide:
- Front-loaded investigation to secure video, EDR/telematics, and witness statements before they vanish.
- Strategic experts in crash reconstruction, biomechanics, and medical specialties to dismantle blame-shifting when needed.
- Evidence sequencing that walks jurors through liability, causation, and damages in a clear, commonsense way grounded in Texas law.
- A client experience centered on clear communication, coordinating care, and practical guidance so you can focus on getting better.
Let us help you place fault where it belongs
If an insurance company is nudging blame your way, don’t go it alone. Call Crosley Law at 210-529-3000 or send us a message through our contact form. We represent clients in San Antonio, Bexar County, and across Texas.
Consultations are free, and we only get paid if we recover money for you.
The information in this article is for educational purposes only and does not constitute legal advice. For personalized guidance, speak to a qualified attorney.
