How is fault determined after an accident in California, Texas and Washington?

By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.

Who decides the percentages

Before a lawsuit, each insurer makes its own call, and the two adjusters often disagree. Those numbers are opening positions in a negotiation. Once a case is filed, the jury (or the judge, if there is no jury) has the final word.

Each state spells out how that works. California jurors are told the defendant must prove that you were negligent and that your negligence was a substantial factor in causing your harm. The jury then sets your percentage, and the judge does the math (CACI 405). In Texas, the jury states a percentage of responsibility in whole numbers for each claimant, each defendant, each settling person and each designated responsible third party (CPRC 33.003). Washington’s statute has the jury assign a share of the total fault to every entity that caused the damages, and the shares must total 100 percent (RCW 4.22.070(1)).

The crash report carries less weight in court than many people expect. California and Washington law both say the accident reports their statutes require may not be used as evidence in a civil or criminal trial (Veh. Code 20013; RCW 46.52.080). Fault gets proven with witnesses, photos, video, vehicle data and the damage itself. Our page on rear-end crashes shows how that plays out in one common type of collision.

California: pure comparative fault and Proposition 51

In 1975 the California Supreme Court threw out the old all-or-nothing rule of contributory negligence and replaced it with “pure” comparative negligence (Li v. Yellow Cab Co.). There is no cutoff. A driver found 80 percent at fault can still recover the other 20 percent of the damages.

Proposition 51, adopted in 1986, changed who pays when there are several defendants. Each defendant’s liability for noneconomic damages, such as pain, suffering and emotional distress, is “several only” and tied to that defendant’s own percentage of fault (Civ. Code 1431.2). Economic damages work the other way. The California Supreme Court said Proposition 51 “retains the joint liability of all tortfeasors” for objectively provable expenses and monetary losses (DaFonte v. Up-Right, Inc., 1992). So a defendant with a small share of fault can be made to pay all of your medical bills, but only its own slice of your pain and suffering. Our page on general and special damages explains the two categories.

Texas: the 51 percent bar

Texas calls its system proportionate responsibility. You recover nothing if your percentage of responsibility is “greater than 50 percent” (CPRC 33.001). At 50 percent or less, the court reduces your damages by your percentage (CPRC 33.012).

Collection has its own rules. A defendant generally pays only the percentage of the damages equal to its own share of responsibility. A defendant found more than 50 percent responsible is jointly and severally liable, so you can collect the full recoverable amount from that one defendant. The same applies to a defendant who acted in concert with someone else, with the specific intent to do harm, to commit certain listed crimes (CPRC 33.013).

Defendants in Texas can also ask the court for leave to designate a “responsible third party” (CPRC 33.004). That person is not sued, but the jury can still give them a percentage, and since the shares total 100, that leaves less for the defendants. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou.

Washington: no bar, with limits on joint liability

Washington never bars recovery just because you share the blame. Fault charged to you “diminishes proportionately” your compensatory damages but does not bar recovery (RCW 4.22.005).

Who pays depends on whether you were at fault at all. Each defendant usually pays only its own share. If the jury finds you were not at fault, the defendants against whom judgment is entered become jointly and severally liable for the sum of their shares. A party also answers for another’s share when the two acted in concert or when one was acting as the other’s agent or servant (RCW 4.22.070).

There is one exception to the no-bar rule. It is a complete defense if the injured person was under the influence of alcohol or drugs, that condition was a proximate cause of the injury, and the jury finds that person more than 50 percent at fault. The defense does not apply against an impaired driver whose impairment caused the injury, as long as the injured person’s own condition was not a proximate cause of the crash (RCW 5.40.060).

Example only: the same crash in three states

Round, made-up numbers. Assume $100,000 in total damages, one defendant with enough insurance, and no intoxication defense.

Now change the facts. You were not at fault, Driver A is 70 percent at fault, and Driver B is 30 percent at fault with no insurance or money. Your damages are $40,000 economic and $60,000 noneconomic, and judgment is entered against both drivers.

Real numbers depend on the evidence, the verdict, settlements with other parties and the insurance that exists.

What this means for your case

Your own conduct gets examined as closely as the other driver’s. Keep photos, witness names and any dashcam video, and write down what you remember while it is fresh. Be careful with the other driver’s adjuster, because an offhand remark about glancing at your phone can turn into a percentage. In Texas, the 50 percent line makes every point of fault count. For truck crashes, read can I recover if I was partly at fault, and see how lawyers calculate settlement value for how a fault estimate shapes an offer.

Common questions

Related pages

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Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.