California no longer applies the doctrine of contributory negligence. The California Supreme Court adopted the rules of comparative negligence in 1975 after finding that contributory negligence was too harsh on accident victims. Contributory negligence had meant that victims would recover nothing if they contributed to their injuries in any way. While this deterred personal injury lawsuits, it left victims uncompensated.
What happens when multiple people are at fault for an accident?
In many cases where someone gets hurt because of someone else’s negligence, the victim was also partially to blame for the accident or for his or her own injuries. The accidents are known as torts. The people responsible for them are known as tortfeasors.
For example: Cindy backs her car out of her driveway and gets hit by David, who was speeding. The crash was partially Cindy’s own fault for not letting David pass before backing out. However, David’s excessive speed also contributed to the crash because it made the injuries worse. It also kept Cindy from accurately judging how much time she had to pull out.
Courts have come up with 2 ways to resolve cases when there are multiple tortfeasors and one is the injured party:
- contributory negligence, and
- comparative negligence.
How does contributory negligence work?
Contributory negligence looks at whether the victim contributed to the accident. If the victim contributed to the accident at all, or if their conduct made their injuries worse, then he or she will not recover any compensation.
This rule is very harsh. Victims can suffer severe or even life-threatening injuries and still recover nothing if they contributed in some miniscule way to the accident. Even if the judge or jury finds that the victim was only 1 percent at fault for their injuries, it can mean that they receive nothing for their losses. This is especially unfair when their total damages were extensive.
Despite the rigidity of the rule, contributory negligence was normal well into the 1960s. Many states and insurance companies preferred contributory negligence because it deterred personal injury cases. Any victim who clearly contributed in some minor part to the accident stood to recover nothing. This made it pointless to hire a personal injury lawyer and file an injury claim.1
In 2021, though, only 4 states and the District of Columbia still use contributory negligence to resolve personal injury cases where the victim was partially at fault. These states are:
- North Carolina, and
Did California switch to comparative fault rules?
California was one of many other states in the U.S. that switched from contributory negligence rules to comparative fault in the 1970s. Most other states switched when their state’s legislature passed a statute that changed the law. In California, though, the change came through the common law from a state supreme court decision.
That case was Li v. Yellow Cab Company.2
The case involved a car accident on a major road in Los Angeles. The victim was turning left at a stop light across 3 lanes of oncoming traffic. She was hit by a driver who was going 30 miles per hour over the speed limit. When he entered the intersection, his traffic signal was yellow.
Even though the other driver was speeding and had a duty of care to stop for the light, the jury found that the victim was negligent for making the left turn when it was unsafe to do so. Under California law, this would bar the plaintiff’s recovery of any compensation for her injuries.3
The California Supreme Court, however, determined that contributory negligence rules were outdated and unfair. It changed them for a system of pure comparative negligence.
What is pure comparative negligence?
Pure comparative fault is a type of comparative negligence law. Under the legal doctrine of pure comparative fault, the victim’s compensation is reduced by the percentage of the victim’s responsibility for his or her injuries. The defendant has to show that there is substantial evidence that the victim was partially responsible. If this is shown, then the jury would compare the negligence of the victim and the defendant and assign percentages of fault to each party.4
California is one of about a dozen states that use pure comparative fault rules. Other states that use this form of fault allocation include:
- New Mexico,
- New York, and
For example: Cindy suffered $100,000 in medical expenses, lost wages, and property damage when she was in the auto accident with David. If the jury decides that Cindy was 40 percent at fault and David was 60 percent at fault for the vehicle accident, then Cindy would recover $60,000 in damages. If the jury finds that Cindy was 90 percent at fault and David only 10 percent responsible, Cindy would still recover $10,000.
In addition to pure comparative fault, there is also modified comparative fault. Modified comparative negligence works by also reducing the amount of damages that the victim can recover by his or her percentage of responsibility for the accident. However, modified fault rules can bar recovery if the victim was half, or more than half, responsible.
About 10 states bar the victim from recovering any compensation if they were 50 percent or more responsible. This means that, if the victim and the other party were equally responsible, the victim recovers nothing. These comparative negligence states include:
- Tennessee, and
The most popular form of comparative fault bars recovery to victims who were found to be 51 percent or more responsible. About 23 states follow these rules. In these states, the victim’s own negligence has to be the primary cause of the accident to be denied compensation. These states include:
- Texas, and
However, some states use different rules of negligence for particular types of cases, like medical malpractice, or different types of compensation, like non-economic damages.
Victims who have been hurt should strongly consider talking to a personal injury attorney from a local law firm for a case evaluation, to discuss their options, and to get legal advice.