I hear some version of this question almost every week: “I think the wreck was partly my fault. Do I even have a case?”
Most of the time, the answer is yes. Texas does not shut you out just because you made a mistake. What matters is how much of the fault is yours, and who gets to decide that number.
The short answer: the 51 percent rule
Texas uses a system called proportionate responsibility. Lawyers also call it modified comparative fault, or the 51 percent bar. The rule is in Chapter 33 of the Texas Civil Practice and Remedies Code, and it works in two steps.
First, if you are more than 50 percent responsible for the crash, you recover nothing. Section 33.001 says a claimant “may not recover damages if his percentage of responsibility is greater than 50 percent.”
Second, if you are 50 percent or less responsible, you can recover, but your damages are reduced by your share of the fault. That is Section 33.012(a).
Here is what that looks like with round numbers. Say your total damages are $100,000.
- If you are 0 percent at fault, you can recover the full $100,000.
- If you are 20 percent at fault, your recovery is reduced to $80,000.
- If you are 50 percent at fault, your recovery is reduced to $50,000.
- If you are 51 percent at fault, you recover nothing.
That last line is why fault percentages are the whole fight in a lot of car wreck cases. One point can be the difference between half your damages and none of them.
Who decides the percentages?
If your case goes to trial, the jury does. Section 33.003 tells the jury to assign a percentage of responsibility, in whole numbers, to each person who caused or contributed to the harm. That can include you, the other driver, a company that owned the other vehicle, and sometimes people who are not even parties to the lawsuit.
Most cases never reach a jury, though. Before that, the number gets argued between your lawyer and the insurance adjuster. And the adjuster has a reason to push your share up. Every point of fault they put on you is money they do not pay.
How insurance companies use “partial fault” against you
These are the moves I see most often:
Treating an apology as an admission. You said “I’m sorry” at the scene because that is what decent people say. The adjuster writes it down as “claimant admitted fault.”
The recorded statement. The other driver’s insurer calls within a day or two and asks to record your version “to process the claim.” The questions are built to get you to guess at your speed, say you “didn’t see” the other car, or agree you “might have” been distracted.
Stretching small facts into big percentages. You were 3 miles over the limit. You had one hand on the wheel. Your brake light was out. None of that may have caused the crash, but an adjuster will try to turn each one into 10 or 20 points of fault.
Pointing at someone else. In a lawsuit, a defendant can ask the court to name a “responsible third party” (Section 33.004). Sometimes that is fair. Sometimes it is a way to spread fault around until the defendant’s share shrinks.
What you can do to protect your claim
Do not admit fault at the scene or online. Check on everyone, call 911, and stick to facts with the officer. Do not post about the wreck.
Do not give the other driver’s insurer a recorded statement until you have talked to a lawyer. You are not required to give them one.
Get the evidence while it exists. Photos of the vehicles, the intersection, skid marks and traffic signals. Names and numbers of witnesses. Ask nearby businesses about cameras quickly, because a lot of systems record over footage within days or weeks.
Get the crash report. In Texas, the officer’s report is a starting point, not the final word on fault. Reports get things wrong, and they can be challenged.
Get medical care right away and follow through. Gaps in treatment give the insurer a second argument: that you were not really hurt.
Watch the clock. In most Texas personal injury cases, you have two years from the date of the crash to file a lawsuit (Section 16.003). Waiting does not help your fault percentage. Evidence fades and witnesses forget.
Common “partly at fault” situations
Some scenarios come up again and again:
You were speeding a little, and the other driver ran a red light. Running the light is usually the bigger cause. A few miles over the limit may add a small share of fault, or none at all if it made no difference.
You were rear-ended after stopping suddenly. The following driver is usually expected to keep a safe distance. A sudden stop does not automatically put you over 50 percent.
You were turning left, and the other driver was speeding. Left turns create a duty to yield, but a driver going well over the limit can carry a large share of the blame.
You were not wearing a seat belt. The defense may use it to argue you share responsibility for your injuries, which can lower your percentage. It is not an automatic bar to your claim, and the defense has to prove the seat belt would have made a difference.
Every one of these turns on the facts. The same crash can come out 10 percent or 60 percent depending on what the evidence shows and how hard someone works to find it.
Your own coverage may help regardless of fault
Check your own policy for Personal Injury Protection (PIP). In Texas, PIP is included on every auto policy unless you rejected it in writing, and it pays toward medical bills and lost wages regardless of who caused the crash. If the other driver had little or no insurance, your uninsured or underinsured motorist coverage may also apply.
When to talk to a lawyer
If the other side is already saying the wreck was your fault, talk to a lawyer before you talk to them again. The fault percentage is not set at the scene. It gets built, one fact at a time, and you want someone building your side of it.
Our Fort Worth car accident lawyers look at the evidence, push back on inflated fault numbers, and handle the insurance company so you can focus on getting better. The consultation is free.
Call us or fill out the form on this page to tell us what happened.
This article is general information, not legal advice for your situation. Every case depends on its own facts.