California is a pure comparative fault state. This means that in a personal injury case, you can still recover some damages even if you are as much as 99% at fault.
Here are four key things to know:
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Here at Shouse Law Group, we have a long track record of helping countless accident victims recover sizable financial settlements, even if they were partly to blame. In this article, our California personal injury attorneys will explain:
- 1. What is California’s comparative fault law?
- 2. How do courts apportion fault?
- 3. Comparative fault versus contributory negligence
- 4. What if I am primarily responsible for the accident?
- 5. Apportionment of fault in auto accidents
- 6. Apportionment of fault in premises liability cases
- 7. Apportionment of fault in product liability cases
- 8. What if both parties sue each other?
- 9. Apportionment of fault with multiple defendants
- Additional resources
1. What is California’s comparative fault law?
California’s comparative negligence law is a legal doctrine that provides a way for judges or juries to divide up fault between all parties. Your damages then get reduced based on your own apportionment of fault, which contributed to the accident.1
Therefore you get 100% of your damages only if the defendant is 100% at fault for the accident.2
2. How do courts apportion fault?
In a California personal injury trial, a jury is given the following instructions to determine comparative fault:
“The defendant claims that the plaintiff’s own negligence contributed to their harm. To succeed on this claim, the defendant must prove both of the following:
- That the plaintiff was negligent; and
- That the plaintiff’s negligence was a substantial factor in causing their harm.
If the defendant proves the above, the plaintiff’s damages are reduced by [the jury’s] determination of the percentage of the plaintiff’s responsibility.”3
When apportioning fault among the defendants, you, and any non-parties, the percentages must total 100 percent.4
The jury will then make a separate finding of your total damages (if any). It will determine the amount of damages without consideration of the percentage of responsibility it assigns to you.
Ultimately, each defendant will owe you an amount equal to the percentage of damages (if any) for which it is responsible for your total damages.
Example: In a trial for Quentin’s dog bite injuries, the jury finds Paul to be one-third responsible for letting the dog run off-leash and Quentin two-thirds responsible for throwing a rock at the dog. Since Quentin’s injuries total $30,000, he can recover from Paul the one-third of his damages Paul is liable for: $10,000.
3. Comparative fault versus contributory negligence
California is a comparative fault state. This allows you to recover damages even if you share in some level of fault.
In the past, California followed the contributory negligence standard where someone even slightly at fault could not recover any damages. Then in 1975, the California Supreme Court replaced contributory negligence with California’s comparative fault law.
See our article on Does California apply contributory or comparative negligence?
4. What if I was primarily responsible for the accident?
If you are primarily responsible for your injuries in California, you can still sue other at-fault parties for damages – but the jury will reduce your award by your own apportionment of fault. This is because California law follows a pure comparative negligence standard.
For example if the court finds you 20% at fault for an accident where you sustained $10,000 in damages, the court will award you $8,000 (80% of $10,000).
Other states follow a modified comparative negligence standard. These states have either a 50% rule or a 51% rule.
- In a 50% rule state, you cannot collect any damages if you are 50% or more at fault for the accident.
- In a 51% rule state, you cannot collect any damages if you are 51% or more at fault for the accident.
Pure Comparative Fault | Modified Comparative Fault | Contributory Negligence | |
Plaintiff’s Recovery | The plaintiff can recover some portion of damages even if they are mostly at fault. | The plaintiff can recover damages as long as their fault is below 50% or 51% depending on the state. | The plaintiff cannot recover any damages if they are even slightly at fault. |
Fairness | Can have unfair outcomes by allowing mostly at-fault plaintiffs to recover damages. | Largely fair by preventing mostly at-fault plaintiffs from recovering damages. | Can be unfair by denying recovery to plaintiffs with even a tiny degree of fault. |
Jurisdictions | AL, AZ, CA, FL, KY, LA, MS, MO, NM, NY, RI, WA. | 50% states: AR, CO, GA, ID, KA, ME, NE, ND, TN, UT 51% states: CT, DE, HI, IL, IN, IO, MA, MI, MN, MT, NV, NH, NJ, OH, OK, OR, PA, SC, TX, VT, WV, WI, WY. | AL, DC, MD, NC, VA |
In any case, if you are in an accident, DO NOT ADMIT FAULT. Firstly, you could be mistaken about being at fault. Secondly, your admission could greatly hinder your ability to recover damages later on. Let your attorneys investigate the incident before drawing any conclusions yourself.
5. Apportionment of fault in auto accidents
California motor vehicle accidents often involve claims of comparative fault because there are usually multiple parties pointing the blame at each other.
Even if one driver clearly hit another driver, the victim may have made the injuries worse such as by failing to wear a seat belt. The jury would then be tasked with determining the victim’s apportionment of fault, and that percentage would then reduce the victim’s damages award.
Note that car accidents can also be blamed on non-driver defendants, including:
- construction crews,
- vehicle manufacturers, or
- the city (such as for poorly maintained roads or signage).
6. Apportionment of fault in premises liability cases
A property owner’s duty of care obligates them to maintain, inspect, and repair their property as well as to give sufficient warnings about dangerous conditions.5 However, people on the property have a duty to act reasonably themselves.
For example, a property owner may be responsible for loose carpeting. However, the person who trips on it may be partially responsible if they are looking down at their cell phone and not paying attention to where they are walking.
If a jury finds you partially responsible for a premises liability accident, your damages may lessen by your apportionment of fault. We typically see premises liability accidents in
- restaurants,
- the workplace, or even
- amusement parks.
7. Apportionment of fault in product liability cases
Under California’s products liability laws, someone who designs, manufactures or sells a defective product is strictly liable for injuries caused by that product — even when that person or company was not negligent.6
However, an accident involving a defective product can partially stem from your own negligent actions. In these situations, the jury can reduce your award based on your share of liability in causing the accident.7
Example: In Elaine’s lawsuit for a driverless car accident, a jury determines the accident was caused by both a software malfunction and Elaine’s negligence. Therefore, Elaine’s damages would likely be reduced based on her portion of fault, as decided by the jury.
In California, strict liability applies to the following types of product defects:
8. What if both parties sue each other?
Sometimes both parties to an accident are at fault and both sustain injuries. In this case, after the first party files a lawsuit, the defendant would then file a counterclaim.
If the jury determines that both parties are partially at fault, the jury will determine damages and fault separately. Then the damages will either be offset against each other or each party will receive separate awards.
Example: At a t-bone accident lawsuit trial, the jury determines that Kevin’s damages are $40,000 and Jackie’s damages are $100,000. The jury also determines that Jackie is 75% at fault for the accident while Kevin is only 25% responsible. As a result, Jackie is entitled to collect $25,000 from Kevin (25% of $100,000). Though Kevin is entitled to collect $30,000 from Jackie (75% of $40,000).
9. Apportionment of fault with multiple defendants
Sometimes more than two parties are at fault for an injury. In that case, comparative damages work the same as when there is just one defendant. A jury can apportion fault between all parties, including you and multiple defendants.
Example: In a Rack Shack parking log, Louis tries to break up a fight between Ned and Anthony, who then assaults Louis. Louis then sues Rack Shack for failing to provide adequate lighting and security and also sues Anthony and Ned for battery. The jury attributes fault as follows: Louis: 10%; Anthony: 50%; Ned: 20%; the Rack Shack: 20%.
Joint and several liability
When you sustain injuries from two or more defendants, joint and several liability allows you to recover all your economic damages from just one of the defendants.
This relieves you of the burden of suing all the responsible parties; instead, the defendant who overpaid you can then sue their co-defendants for reimbursement.
Note that in California, “joint and several liability” applies only to recovering economic damages, such as:
- medical expenses,
- property damage,
- loss of income, and
- loss of earning capacity.
In contrast, non-economic damages (such as pain and suffering) are not subject to joint and several liability. Therefore if more than one defendant caused you non-economic damages, you need to sue each one to recover the amount they are individually responsible for.9
Example: In the above example, Louis may be able to collect the entire amount of economic damages from the Rack Shack because the company has more money than the other defendants. However, Louis can only collect about 20% of his non-economic damages from the Rack Shack. Louis would have to collect the remaining 50% of non-economic damages from Anthony and 20% of non-economic damages from Ned.
Additional resources
For more in-depth information, refer to these scholarly articles:
- From Defect to Cause to Comparative Fault-Rethinking Some Product Liability Concepts – Article in Marquette Law Review.
- Pure vs. Modified Comparative Fault: Notes on the Debate – Article in Emory Law Journal.
- Products Liability and Plaintiff’s Fault – The Uniform Comparative Fault Act – Article in Mercer Law Review.
- Comparative Fault and the Nonparty Tortfeasor – Article in Indiana Law Review.
- Comparative Fault to the Limits – Article in Vanderbilt Law Review.
Legal References:
- Li v. Yellow Cab Co. (1975) 13 Cal.3rd 804. See also Rycz v. Superior Court (2022) .
- California Civil Jury Instructions (CACI) 406. See Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285 (“The comparative fault doctrine ‘is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine “is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’”).
- CACI 405.
- CACI 406, footnote 2.
- CACI 1001.
- Soule v. GM Corp. (1994) 8 Cal.4th 548, 560 (“A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.”)
- CACI 1207A — Strict Liability — Comparative Fault of Plaintiff. See Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 (“We do not permit plaintiff’s own conduct relative to the product to escape unexamined, and as to that share of plaintiff’s damages which flows from his own fault we discern no reason of policy why it should, following Li, be borne by others.”).
- CACI 1200 — Products Liability.
- American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590 (“We hold that after Li, a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only ‘in proportion to the amount of negligence attributable to the person recovering.’”). California Civil Code Section 1431 & 1431.2.