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Comparative Negligence | Article | McKay Law

Understanding Comparative Negligence in a Slip and Fall Accident [Infographic]

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Comparative negligence is used to describe the share of fault attributable to each party in a slip and fall accident case. To win a slip and fall lawsuit in Illinois, the injured party must prove that the property owner was negligent in providing safe property conditions and/or maintenance of the property, and that the owner’s negligence was primarily responsible for the accident. Because the amount recovered is reduced by the percentage of fault held by the victim, comparative negligence can significantly impact a plaintiff’s verdict.

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(Article continues below infographic) Failing to exercise the degree of care expected of someone in order to minimize the risk of harm to another is considered “negligence,” the legal basis for many personal injury cases. For example, you may be sued for negligence if a delivery person slips and falls on a patch of ice, sustaining an injury, on the way to your front door. In that case, the homeowner has a duty to maintain a relatively safe walkway.

State negligence laws are not that different from one state to the next, aside from how the law considers comparative and contributory negligence. For the most part, plaintiffs will have to demonstrate to the court that the five following elements are present:

  • Duty – The defendant should have acted (or not acted) in a certain way, owing a “duty” to act (or not act). Motorists have a duty to pay attention to the road and not be distracted by cell phones or other stimuli.
  • Breach of Duty – Defendant failed to do something (or refrain from doing something) that is considered his or her duty. For example, a motorist who was reading text messages and hit a pedestrian has breached his/her duty to pay attention to the road.
  • Cause in Fact – The injury was “in fact” caused by the defendant’s breach of duty. For example, the pedestrian would not have been struck and injured had the motorist who hit him been paying attention.
  • Proximate Cause – Was it obvious to a reasonable person that texting while driving could result in someone’s injury? For instance, the distracted motorist should have known that texting while driving could cause an accident.

Damages – There must be actual harm to the plaintiff that the system is capable of compensating him or her for.

Texas Negligence Laws

The basic provisions of Texas negligence laws are listed in the table below. See Negligence: Background for a general overview.

Code SectionsTexas Civil Practice and Remedies Code: Section 33.001 (proportionate responsibility) Section 33.002 (applicability) Section 33.003 (determination of percentage of responsibility) Section 33.012 (amount of recovery)
Comparative NegligenceTexas uses a modified form of comparative negligence (also known as “proportionate responsibility” in Texas). This means that if you are found partially at fault for the injury, then your damages can be reduced.
Contributory Negligence-Limit to Plaintiff’s RecoveryPlaintiff’s negligence not greater than defendant’s; award diminished in proportion to negligence.
Contribution Among TortfeasorsYes
Uniform ActNo

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most

current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

Research the Law

Texas Negligence Laws: Related Resources

Get an Attorney’s Help with Texas Negligence Laws

Texas laws on negligence often depend on the type of claim involved. If you’ve been harmed in Texas and you feel you may be entitled to compensation, you may want to speak to a Texas attorney who understands Texas’ rules on contributory negligence. For help with Texas negligence laws, you may contact right away, or call (903) 999-2653.

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Proving Comparative Negligence

In slip and fall cases, comparative negligence has to do with whether the plaintiff was negligent in connection with the accident. Comparative negligence compares the degree of fault between the plaintiff and the defendant. Although property owners have a duty to keep property safe from dangerous conditions that could cause injuries, that doesn’t always mean that the owner was negligent if injuries occur.

Property owners have a duty to provide reasonable care and protect invited parties from unreasonable risks of harm. If a person suffers injuries on the property due to a breach of this duty, the owner can be held liable for injuries. The accident victim must prove that the property owner knew, or should have known that the property was unsafe, and failed to take reasonable steps to repair the problems.

In some slip and fall accidents, the victim may contribute to his/her own injury by lack of attention or outside distractions. In such cases, the rules of comparative negligence may be used by the court to determine the percentage of fault between the injured party and the property owner. A court or insurance company will only determine the injury victim’s comparative negligence after it determines the property owner’s liability. If the property owner is not determined negligent, comparative negligence will not be used. However, if the property owner is proven negligent, the court will use comparative negligence to determine the degree of liability. In slip and fall cases where the defendant and the plaintiff are both at fault, the court has to compare each party’s percentage of liability.

The plaintiff’s degree of fault will reduce the amount of his/her awarded damages. For example, if the court awards total damages of $100,000 and the plaintiff is found to be 40 percent at fault, recovery will be reduced by 40 percent, awarding the plaintiff $60,000.

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