Why Texas Non-Subscriber Employer Cannot Argue Injury or Death Was Caused by the Negligence of a Fellow Employee?

In Texas, non-subscriber employers cannot argue that an injured employee was guilty of contributory negligence as a defense in a workplace injury case because Texas follows a modified comparative negligence system, specifically a “51% bar rule.” Under this legal framework:

1. Pure Contributory Negligence Barred:

Texas does not apply pure contributory negligence, which would bar an injured party from recovering any damages if they were found even slightly negligent. In a pure contributory negligence system, if an injured employee is found to be even 1% at fault for their injury, they cannot recover any damages.

2. 51% Bar Rule:

Texas follows the modified comparative negligence rule with a 51% bar. This means that an injured employee can still recover damages even if they were partially at fault for their injury, as long as their fault is not greater than 50%. However, if the employee’s fault is equal to or greater than 51%, they are barred from recovering any damages.

Under this system, the injured employee’s contributory negligence may reduce their recoverable damages, but it does not completely prevent them from seeking compensation for their injuries. The court will determine the percentage of fault assigned to each party involved and reduce the employee’s award accordingly if they are found partially at fault.

It’s worth noting that workers’ compensation, which many non-subscriber employers do not provide, operates on a “no-fault” basis. In a workers’ compensation system, injured workers are generally entitled to benefits regardless of fault, and employers are immune from most personal injury lawsuits brought by employees. However, in non-subscriber cases, the modified comparative negligence rules apply, allowing injured employees to seek damages while considering their own degree of fault.

In summary, Texas non-subscriber employers cannot use contributory negligence as a complete defense, but the injured employee’s degree of fault may affect the amount of damages they can recover under the modified comparative negligence system.