Partial Fault and the 51 Percent Bar for an Injured Pedestrian

Attorney Answer

Being partly at fault does not end your claim, but Texas puts a hard cutoff on it, and your lack of car insurance has nothing to do with being hit while you were on foot. Those are two separate worries, and only one of them is real.

Take the insurance point first. Texas requires financial responsibility to operate a motor vehicle (Tex. Transp. Code § 601.051), and driving without it carries a fine (§ 601.191). Neither reaches a person crossing on foot. Nothing in the financial responsibility chapter conditions an injured pedestrian's right to recover on whether that person owned a car or insured one.

Fault is the part that matters. Texas divides responsibility by percentage, and the trier of fact assigns a whole-number percentage to each claimant and each defendant (Tex. Civ. Prac. & Rem. Code § 33.003). The cutoff is in § 33.001:

"In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent."

So more than 50 percent responsible means no recovery at all. At 50 percent or less, § 33.012(a) applies:

"If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant's percentage of responsibility."

In plain terms: if you are found 30 percent responsible, you recover 70 percent of your damages. If you are found 60 percent responsible, you recover nothing. That is why the exact circumstances of the crossing matter so much, and why an early opinion about fault — from a driver, an adjuster, or even an officer at the scene — is not the final word. The percentage is decided later, on evidence.

The driver has duties of his own that bear on that percentage. Tex. Transp. Code § 545.351(a) forbids driving at a speed greater than is reasonable and prudent under the circumstances then existing, and § 545.351(b)(2) requires a driver to control the vehicle's speed as necessary to avoid colliding with a person who is on or entering the highway in compliance with law. Where a pedestrian was crossing, and whether the driver was keeping a proper lookout and speed, are both in the mix.

What you can do

1. Get medical care and keep treating as directed, even for injuries that seem minor now.

2. Request the crash report from the law enforcement agency that responded, and read how the crossing is described in it.

3. Photograph the location — the crossing, any signals, signs, markings, lighting and sight lines — and do it soon, before anything changes.

4. Get the names and numbers of anyone who saw it.

5. Ask any auto insurer in your household whether you are covered as a resident relative for personal injury protection, which pays medical expenses without regard to fault (Tex. Ins. Code § 1952.155(a)), or for uninsured motorist coverage.

6. Do not accept an adjuster's fault conclusion as final, and talk to a lawyer before giving a recorded statement or signing a release.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) requires a personal injury suit within two years after the day the cause of action accrues. Where that falls for you depends on your facts, so have a Texas attorney review the dates.