California “Comparative Negligence” Law – How It Works

Many successful cases involve some degree of shared fault. Our job is often showing that the insurance company has exaggerated our client’s responsibility.

In this article, our California personal injury attorneys will explain what you need to know about comparative fault laws.

• 1. How Comparative Fault Works
• 2. What if I was primarily at fault?
• 3. Auto Accidents
• 4. Premises Liability Cases
• 5. Product Liability Cases
• 6. What if the defendant countersues?
• 7. What if there are multiple defendants?
• Frequently Asked Questions
• Additional Reading

1. How Comparative Fault Works

If you sue someone for negligence in California, you have to prove three main elements:

1. The defendant had a duty of care towards you (such as being safe on the road);
2. The defendant breached that duty of care (such as by crashing into you); and
3. The defendant’s breach caused your injuries (such as by breaking your leg).

In many accident cases, however, victims are partly to blame for their injuries such as by:

• not paying attention or
• not seeking medical help right after the accident.

In California, the law of “comparative fault” requires courts to divide up blame between all the parties in your accident case. Ultimately, each defendant will owe you an amount equal to their percentage of fault (if any).¹

In our experience, comparative negligence arguments are often much more nuanced than insurance companies initially suggest. Adjusters sometimes assign an injured person a high percentage of fault immediately after an accident, only for that percentage to decrease substantially after witness interviews, surveillance footage, accident reconstruction, or medical evidence becomes available. An early insurance decision is not the final word.

2. What if I was primarily at fault?

California is one of 12 states that follows a pure comparative negligence standard. This means you can pursue damages even if most of the blame lies with you: Your damages would just be reduced by your apportionment of fault.²

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 one-third of his damages: $10,000.

Other states follow a modified comparative negligence standard, which does not allow you to recover damages if you are half (or more than half) to blame, depending on the state. A few states follow the contributory negligence standard, which bars recovery even if you were only 1% to blame.

The following chart summarizes these different types of comparative negligence laws.

	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

The most important thing to remember is that if you are in an accident, DO NOT ADMIT FAULT. You could be mistaken about being at fault. Plus, your admission could greatly hinder your ability to recover damages later on.

In any case, the other party’s insurance company is going to try to lay all the blame on you no matter what. This is why you should hire a personal injury attorney to investigate the case, gather evidence in your favor, safeguard your rights, and fight for the highest payout possible for you.²

We regularly help people who initially believe they have no case because they think they were “mostly responsible.” California’s pure comparative negligence rule often surprises clients. Even when someone made a mistake that contributed to an accident, we frequently find another person or company also failed to act reasonably, allowing our clients to recover meaningful compensation.

3. 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 or a pedestrian, the victim may have made the injuries worse such as by failing to wear a seat belt or jaywalking. 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.

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).

Note that if you carry Med Pay insurance (which is optional in California), you can file a claim even if you were at fault. Med Pay covers the medical bills and funeral expenses of you and your passengers regardless of fault.

(Also note that California does not offer PIP insurance since it already offers Med Pay insurance. Both are types of no-fault insurance.)

In many vehicle collision cases, each driver’s insurer initially tells a very different story about who caused the crash. From what we have seen, obtaining photographs, dashcam footage, black-box data, witness statements, traffic surveillance footage, GPS data, accident reconstruction expert testimony, and police reports early often makes a significant difference in reducing an unfair allocation of fault.

4. 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.³ However, people on the property have a duty to act reasonably.

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 be lessened by your apportionment of fault. We typically see premises liability accidents in:

• restaurants,
• the workplace, or even
• amusement parks.

Property owners often argue that an injured visitor “should have been paying attention.” In our experience, those arguments are not always supported by the evidence. We regularly evaluate whether poor lighting, hidden hazards, inadequate maintenance, or building code violations played a much larger role than the property owner initially admits.

Note that if you get injured on the job, you should be able to file for workers’ compensation benefits even if you caused the accident (with rare exception). Workers’ comp is no-fault insurance.

5. 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.⁴

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.⁵

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 failure to yield. 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 problems:

• manufacturing defects,
• design defects, and
• inadequate warning defects.⁶

Manufacturers frequently try to shift blame onto consumers by arguing the product was misused. In cases we handle, we investigate whether the product contained an unreasonable design defect, manufacturing defect, or inadequate warning. Oftentimes, we find grounds to sue and recover damages.

6. What if the defendant countersues?

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). Therefore, Kevin would walk away with $5,000 ($30,000 minus $25,000), and Jackie would end up with nothing.

Counterclaims are sometimes used as a litigation strategy to increase settlement pressure. From what we have seen, a counterclaim does not necessarily mean the defendant has a strong case. It is not uncommon for counterclaims to be dismissed once we show the court they are baseless.

7. What if there are 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 lot, Louis tries to break up a fight between Ned and Anthony, who then assault Louis. Louis sues Rack Shack for failing to provide adequate lighting and security. He also sues Anthony and Ned for battery.

The jury attributes fault as follows: Louis: 10%; Anthony: 50%; Ned: 20%; Rack Shack: 20%. So if Louis sustained $10,000 in damages, Anthony would owe $5,000, Ned would owe $2,000, and Rack Shack would owe $2,000.

When “Joint and Several Liability” Applies

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 are not subject to joint and several liability. Non-economic damages include subjective losses such as pain and suffering, loss of enjoyment of life, and emotional distress and trauma.

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.⁷

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 because Rack Shack was only 20% at fault. Louis would have to collect the remaining 50% of non-economic damages from Anthony and 20% of non-economic damages from Ned.

Cases involving multiple defendants are often far more complicated than they first appear. In our experience, identifying every potentially responsible party can significantly increase the amount of compensation available because liability is often spread among drivers, businesses, contractors, property owners, manufacturers, or governmental entities.

Frequently Asked Questions

Who has the burden of proving comparative negligence in a California personal injury case?

If a defendant claims your own negligence contributed to your injuries, the defendant generally has the burden of proving both that you were negligent and that your negligence substantially contributed to your harm. California juries receive specific instructions on comparative fault, including CACI No. 405, before assigning percentages of responsibility.

In our experience, many insurance companies immediately assume an injured person shares blame without investigating the facts. We challenge unsupported allegations of comparative fault by gathering witness statements, photographs, surveillance video, expert opinions, and other evidence that paints a more complete picture of what actually happened.

How does comparative negligence affect settlement negotiations in California?

Although juries determine comparative fault in cases that go to trial, the vast majority of California personal injury claims settle beforehand. During settlement negotiations, each side estimates how a jury would likely allocate fault and uses that assessment when negotiating compensation.

From what we have seen, insurance adjusters frequently begin negotiations by assigning an injured person a higher percentage of fault than the evidence ultimately supports. We help clients reduce those percentages by presenting stronger evidence before a lawsuit ever reaches trial.

Does California’s comparative negligence law apply to wrongful death cases?

Yes. California’s comparative negligence principles generally apply to wrongful death claims just as they do to other negligence actions. If the deceased person’s own negligence contributed to the fatal accident, recoverable damages may be reduced according to that percentage of fault rather than eliminated altogether.

Families are often surprised to learn that the conduct of the deceased may become an issue during litigation. We work with accident reconstruction experts and other specialists to ensure fault is allocated fairly instead of allowing unsupported assumptions to diminish a family’s recovery.

Can more than one person or company share fault under California’s comparative negligence law?

Yes. Many accidents involve multiple negligent parties. California allows juries to allocate percentages of fault among all responsible persons, with the total equaling 100 percent. Each defendant’s financial responsibility depends upon California’s comparative fault rules and, for non-economic damages, Proposition 51.

In our view, identifying every responsible party is one of the most valuable parts of investigating a serious injury case. We regularly discover additional drivers, property owners, contractors, employers, or businesses whose negligence contributed to an accident and whose insurance may increase the compensation available to our clients.

How are damages divided among multiple defendants in California?

When more than one defendant is responsible, California generally makes defendants jointly liable for economic damages such as medical bills and lost income, while each defendant is responsible only for its own percentage of non-economic damages such as pain and suffering under Civil Code section 1431.2 (Proposition 51).

From what we have seen, this distinction can dramatically affect settlement strategy in cases involving multiple defendants. We regularly explain these rules to clients because understanding how damages are allocated helps them make informed decisions about settlement offers.

Is an insurance company’s fault determination legally binding in California?

No. Insurance companies routinely assign fault percentages while investigating claims, but those determinations are simply the insurer’s opinion. If the parties cannot agree, the ultimate allocation of fault is decided through litigation, usually by a jury.

Our clients sometimes become discouraged after receiving a denial letter or learning that an adjuster assigned them substantial fault. We remind them that an insurance company’s internal conclusion is not the final legal answer, and we have frequently obtained significantly better results after conducting our own investigation.

What evidence determines comparative negligence in California?

Comparative negligence findings should be based on admissible evidence, including witness testimony, photographs, surveillance footage, accident reconstruction, medical records, expert testimony, and other proof showing how the accident occurred.

Some of our strongest comparative negligence defenses are built through careful investigation immediately after an accident. Preserving evidence early often makes the difference between an insurer assigning excessive blame and an allocation of responsibility that is favorable to our client.

How does a plaintiff’s percentage of fault affect compensation in California?

California’s pure comparative negligence system reduces an injured person’s damages only by the percentage of fault assigned to that person. It does not automatically reduce recovery simply because another injured person or another defendant was also negligent.

In our experience, comparative negligence calculations can become confusing when multiple injured people or multiple defendants are involved. We spend considerable time walking clients through how fault percentages affect their individual recovery so they understand exactly how California’s rules apply to their case.

Additional Reading

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.

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