What Is Texas Comparative Fault and How Does It Affect Pedestrian Accident Claims?

After nearly every pedestrian accident in Austin, the driver says the same thing: it was the pedestrian’s fault. They claim the pedestrian was not in a crosswalk, was wearing dark clothing, stepped out without looking, or was distracted by a phone. Insurance companies seize on these claims to reduce or deny compensation for injured pedestrians. But Texas law does not require a pedestrian to be completely blameless to recover damages. The pedestrian accident lawyers at Shaw Cowart have been fighting back against these tactics for 34 years, and they want you to understand how comparative fault actually works in Texas.

Under Chapter 33 of the Texas Civil Practice and Remedies Code, Texas follows a modified comparative fault system. This means that if you are injured as a pedestrian, your compensation is reduced by whatever percentage of fault a jury assigns to you — but you can still recover as long as your share of the blame does not exceed 50 percent. A pedestrian who is found 25 percent at fault still recovers 75 percent of their damages. The experienced personal injury attorneys at Shaw Cowart understand how insurance companies manipulate this system and know how to push back.

The reality is that drivers who hit pedestrians in Austin carry the overwhelming majority of the blame in most crashes. Pedestrian crashes account for just 3 percent of all traffic collisions in Austin but 28 percent of all serious injury and death crashes. Those numbers prove that when vehicles strike pedestrians, the results are catastrophic — and pedestrian accident attorneys know that the driver’s speed, attention, and compliance with traffic laws are almost always the dominant factors.

How Insurance Companies Use Comparative Fault Against You

The Blame-the-Pedestrian Playbook

Insurance adjusters are trained to find any reason to attribute fault to the pedestrian. This is not speculation — it is their standard operating procedure. Common arguments they make are that you were jaywalking or crossing outside a marked crosswalk, that you were wearing dark clothing at night, that you were looking at your phone when you stepped into the street, that you failed to yield to oncoming traffic, or that you were walking while impaired. Every one of these arguments is designed to reduce the payout. Even if they cannot prove you were more than 50 percent at fault (which would bar your claim entirely), shifting even 20 or 30 percent of the blame to you can save the insurance company tens of thousands of dollars.

Why These Arguments Often Fail

Experienced pedestrian accident lawyers know how to dismantle these arguments. First, Texas law does not require pedestrians to be in a marked crosswalk at all times. Pedestrians have the right to cross at unmarked crosswalks (any intersection where two roads meet) and even at mid-block locations, as long as they yield to traffic that is close enough to constitute a hazard. Second, a driver’s duty to keep a proper lookout and exercise due care exists regardless of what the pedestrian is wearing or doing. Driving at a speed that does not allow you to stop for a person in the road is negligence — period. Third, if the driver was speeding, texting, running a red light, or impaired, their negligence is the dominant cause of the crash no matter what the pedestrian was doing.

Real-World Examples of How Comparative Fault Plays Out

Consider a pedestrian who crosses a busy Austin street mid-block at night wearing dark clothing. A driver traveling 15 mph over the speed limit strikes and seriously injures the pedestrian. A jury might assign 30 percent of the fault to the pedestrian and 70 percent to the driver. If the total damages are $500,000, the pedestrian recovers $350,000 — reduced by their 30 percent share, but still a significant amount.

Now consider a pedestrian walking in a marked crosswalk with the walk signal when a driver making a left turn fails to yield and strikes them. In this scenario, the pedestrian bears zero fault, and the driver is 100 percent liable. The full $500,000 in damages is owed.

The point is that comparative fault is a spectrum, not an all-or-nothing determination. Even cases where the pedestrian made a mistake are still worth pursuing if the driver’s negligence contributed to the crash.

The 51 Percent Bar — When You Cannot Recover

There is one hard line in Texas comparative fault law. If a jury finds that you are 51 percent or more at fault for the accident, you recover nothing. This is called the 51 percent bar. Insurance companies work aggressively to push the pedestrian’s fault above this threshold, because it means they pay zero. Pedestrian accident attorneys work just as aggressively to keep your fault percentage as low as the evidence supports — and to make sure the driver’s negligence is fully documented and presented.

Evidence That Matters in Comparative Fault Cases

Building a strong comparative fault case requires evidence that shows what the driver was doing at the time of the crash. Cell phone records can prove the driver was texting. Vehicle speed data from the car’s event data recorder can prove the driver was exceeding the speed limit. Surveillance camera footage can show the driver running a red light or failing to yield. Toxicology results can prove the driver was intoxicated. And the location and condition of the crosswalk, pedestrian signals, and street lighting can all support the argument that the pedestrian acted reasonably under the circumstances.

Do not let the driver’s version of events discourage you from pursuing your claim. The pedestrian accident lawyers at Shaw Cowart will investigate your crash, gather the evidence, and fight to make sure the driver is held responsible for their share of the fault. Consultations are free. If you have a legal question — call us at 512-842-7085.