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Can I recover for my injury?  From who?

There are many factors that determine how much a person can recover from an injury or death lawsuit.  A non-exhaustive list would include liability (who was at fault), damages, the presence and amount of insurance, the defendant’s ability to pay and State statutory laws (caps on damages).  However, the primary fact that must be proven is liability.

Basic liability questions

As stated prior, liability is simply who is at fault for causing an injury.  That question is ultimately decided by a jury or a judge.  However, different states handle liability differently.  Five states (Maryland, Virginia, Washington DC[1], Alabama and North Carolina) employ a rather draconian standard for liability labeled “contributory negligence.”  In these five states, if an injured party is determined by a judge or jury to even be 1% or more at fault for causing an accident, then that party cannot recover anything.  For example, in one of those five states, if a person is involved in an automobile accident and is found to have contributed to causing the accident a very minor amount, then that person still cannot recover.

Other states have adopted a more compassionate standard for liability called comparative negligence.  Comparative negligence simply means that the jury or judge determines all of the parties that contributed to causing the injury and each one of those parties pays its share of the Plaintiff’s damages in direct proportion to its amount of fault.  For example, in a three car accident, if the jury determines that the Plaintiff’s injuries are worth $10,000 and that party A is 25% at fault, party B is 25% at fault and the Plaintiff is 50% at fault, then the Plaintiff would collect $2500 from party A and $2500 from party B. 

Texas's laws on liability

Other states such as Texas have adopted a permutation of comparative negligence that is sometimes referred to as modified comparative negligence.  It is also referred to as the 51% rules.  Basically, if a judge or jury determines that a Plaintiff is 50% of less at fault, then he/she can recover damages.  However, if a judge/jury determines that a Plaintiff is 51% or more at fault, then he/she cannot recover any damages.  Using the same example as in the above paragraph, in a three car accident, if the jury determines that the Plaintiff’s injuries are worth $10,000 and that party A is 25% at fault, party B is 25% at fault and the Plaintiff is 50% at fault, then the Plaintiff would collect $2500 from party A and $2500 from party B.  However, if the jury determined that party A was 20% at fault and party B was 20% at fault and the Plaintiff was 60% at fault, then the Plaintiff would be unable to recover damages from anyone as a result of the accident.

Contact us

Determining liability is important to determining if you should file a lawsuit.  Our attorneys offer free consultations about your case.  If you have any questions about your potential case, please contact us



[1] The author understands that Washington DC is not technically a state.  However, for ease in writing, it will be referenced here as so.

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