Ask a Lawyer - Archive

I was involved in an automobile accident in Dallas, Texas two weeks ago, and the other driver's insurance company is telling me that I am "contributorily negligent"; what does this mean?

The basis of our common law legal system is rooted in English law. Under English common law, a defendant in a lawsuit could claim the affirmative defense of contributory negligence, which meant that the defendant claimed that the plaintiff's negligence contributed to his injuries. Even if the defendant was 99% responsible for the plaintiff's injuries and the plaintiff was only 1% negligent, the defense of contributory negligence would totally bar the plaintiff's recovery. A handful of jurisdictions in the United States are still operating under this harsh rule.

Fortunately, many states in including Texas have adopted a revised approach to contributory negligence. Under Texas law, a plaintiff may recover for his or her injuries based on the negligence of the defendant so long as the plaintiff's own fault reaches less than 51%. This scheme of fault allocation is known as modified comparative negligence, but the old contributory nomenclature still hangs around. Other states in the Union use a similar approach, but the plaintiff's own fault must be less that 50% to permit recovery. A minority of states follow the rule that permits a plaintiff's recovery even if the plaintiff was 99% responsible for his or her own injuries.

Disclaimer: We are licensed Texas attorneys, and base our writings on Texas law. This information is current and accurate at the time of posting. We do not update previous posts if/when the laws change. This blog does not constitute legal advice.