Under California's “comparative fault” law, also sometimes called comparative negligence, a person injured in an accident can still recover damages even when he or she is partially to blame for the accident.
Comparative fault allows an injury victim to get a portion of his or her damages covered by the other negligent party, even if the victim is partly responsible for the injury.
In a personal injury case, the jury will decide what percentage of the plaintiff's own negligence contributed to the injuries. If the plaintiff was partially responsible for his or her own harm, the damages award will be reduced by the plaintiff's percentage of fault.
Comparative fault can apply to most California personal injury cases. The most common types of claims involving comparative fault claims include:
- Car accidents,
- Bicycle accidents,
- Premises liability,
- Slip and fall accidents,
- Product liability, and
- Medical malpractice.
In this article, our California personal injury attorneys will explain:
- 1. What is California's comparative fault law?
- 2. How is the level of responsibility decided in a California comparative fault case?
- 3. "Comparative fault” versus "contributory negligence" in California.
- 4. What if the plaintiff is primarily responsible for the accident?
- 5. Comparative Fault in California Auto Accident Cases
- 6. Comparative Fault in Premises Liability Cases
- 7. Comparative Fault in Product Liability Claims
- 8. What happens if both parties sue each other for damages?
- 9. How does comparative negligence work when there are more than two responsible parties?
In a personal injury accident lawsuit, the plaintiff is seeking money damages from the defendant. If the defendant is 100% at fault for the accident, the plaintiff can be awarded 100% of his or her damages. However, what happens if the plaintiff was also partially to blame for the accident?
California's comparative negligence law provides a way to divide up fault between all parties. The plaintiff's damages are then reduced based on the plaintiff's own negligence, which contributed to the accident.1
In a personal injury lawsuit, the defendant claims the plaintiff's own negligence caused or contributed to their own harm. Once the defendant makes that claim, the jury would then decide what percentage of fault is due to the plaintiff's own negligence. That percentage will reduce the plaintiff's overall award for damages.2
Responsibility is generally decided by either the judge or the jury. In a personal injury trial, a jury is given instructions on comparative fault of the plaintiff. The comparative negligence jury instructions are:
“The defendant claims that the plaintiff's own negligence contributed to his or her 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 his or her harm.
If the defendant proves the above, the plaintiff's damages are reduced by your determination of the percentage of the plaintiff's responsibility.”3
When dividing up fault among the defendants, plaintiffs, and any non-parties, the percentages must total 100 percent.4
The jury will then make a separate finding of the plaintiff's total damages (if any). It will determine the amount of damages without consideration of the percentage of responsibility it assigns to the plaintiff.
Ultimately, each defendant will owe the plaintiff an amount equal to the percentage of damages (if any) for which it is responsible for the plaintiff's total damages.
Example: Quentin suffers dog bite injuries after Paul lets his large dog run off-leash through their neighborhood. Quentin sues Paul for his medical bills and pain and suffering. But Paul claims the dog was just defending himself after Quentin threw a rock at him.
The jury agrees with Paul, finding that Quentin instigated the attack. 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.
The jury determines that Quentin's injuries total $30,000. Quentin is allowed to recover from Paul the one-third of his damages Paul is liable for -- i.e. 1/3 X $30,000 = $10,000.
California is a “comparative fault” state. As stated above, this allows the plaintiff to recover damages even if they share in some level of fault. The majority of states follow some version of comparative fault, either pure comparative fault or modified comparative negligence.
In the past, California followed the “contributory negligence” standard. Under that standard, someone who was even a little at fault for an accident could not recover any damages at all.
But in 1975, the California Supreme Court decided that was unfair. It replaced “contributory negligence” with California's “comparative fault” (or "shared fault") law.
Contributory negligence is still followed in a number of states. This is a harsher rule that generally provides that if the plaintiff is at all negligent in causing his or her own injury, the plaintiff is barred from getting any damages.
How Contributory Negligence Works
Only a handful of states still follow contributory negligence (Alabama, Washington D.C., Maryland, North Carolina, and Virginia). Under this rule, even if the plaintiff was 1% responsible for causing an accident but the defendant was 99% responsible, the plaintiff would not be able to recover damages.
Example: Paul is visiting Washington D.C. on a vacation. There is a construction site with a large crane being used to lift I-beams onto a structure. The sidewalk near the construction site is closed, but Paul does not want to cross the street and just runs quickly through the closed sidewalk section.
A cable breaks on the crane, causing the I-beam to fall, hitting Paul and paralyzing him from the neck down. Paul has expected lifetime damages of $1 million. Paul files a personal injury lawsuit against the construction company and the crane operator for the crane accident.
A jury finds the crane operator, construction company, cable manufacturer, and the government were all negligent in causing the accident. However, the jury also finds Paul 1% responsible for crossing the closed sidewalk section. Under D.C.'s contributory negligence system, Paul may not be able to recover any damages from the accident.
However, if the accident occurred in California, Paul may be able to receive damages of $990,000.
Comparative negligence is further divided into:
- Pure comparative negligence, and
- Modified comparative negligence.
California follows a pure comparative negligence standard. This means that the plaintiff can recover any portion of damages caused by the defendants. If the plaintiff is primarily responsible, the plaintiff can still get some amount of award, reduced by the plaintiff's own fault.
Other states follow a modified comparative negligence standard. Modified comparative negligence states generally follow either a 50% rule or a 51% rule.
- In a 50% rule state, the plaintiff cannot collect any damages if the plaintiff is 50% or more at fault for the accident.
- In a 51% rule state, the plaintiff cannot collect any damages if the plaintiff is 51% or more at fault for the accident.
States like Nevada follow a modified comparative negligence 50% rule. In a personal injury accident in Nevada, the plaintiff would be barred from recovering damages if he or she is more than 50% responsible for an accident or injury.
Example: Eric is helping his friend Tim build a treehouse in Reno. Tim asks Eric to climb up the ladder and put in a nail because Eric is taller. Eric says he should not climb the ladder because he is wearing flip flops. Tim pleads and says he will hold the ladder very secure.
Eric climbs up the ladder and while on the upper rungs, Tim gets a phone call and leaves to answer the phone. Eric feels the ladder rung bend and he tries to jump off the ladder but his flip flop catches and he falls off the ladder to the ground, suffering a head injury. Eric's damages are estimated at about $20,000.
A Nevada jury finds that both Tim and Eric are both equally responsible for the accident. Tim is 50% responsible for not securing the ladder and Eric is 50% responsible for not wearing proper footwear. Nevada is a 50% rule state and because Eric is 50% responsible, he will not be able to collect any damages from Tim.
However, if the accident occurred in California, Eric may be able to recover half of his damages from Tim, or $10,000 (½ x $20,000).
California motor vehicle accidents often involve claims of comparative fault. This is often because multiple parties involved and there can be multiple proximate causes of a car accident. Car accidents that may involve comparative fault may include:
- Accidents with a DUI driver,
- Bus accidents,
- Ridesharing vehicle accidents,
- Head-on collisions, or
- Trucking accidents.
In multi-vehicle accidents, each party may point fingers at the other claiming the other side caused the accident. Car accidents can also be blamed on non-driver defendants, including construction crews, vehicle manufacturers, or the city.
In an auto accident, when one defendant claims the plaintiff was partially at fault for the accident, the jury will determine what share of fault each party has in causing the injury. The plaintiff's recovery will then be reduced by their own share of fault in causing the accident.
Premises liability is also a common source of comparative fault claims. Generally, the property owner or occupier is liable for dangerous or hazardous conditions on their property. These accidents can occur in restaurants, the workplace, or even amusement parks.
A property owner's “duty of care” obligates the property owners to exercise reasonable care to:
- Maintain their property;
- Inspect the property;
- Repair potentially dangerous conditions; and
- Give adequate warning of any dangerous conditions.5
However, many accidents on private property are caused by some combination of a hazardous condition and the victim's negligence. When the plaintiff is partially responsible for a premises liability accident, the plaintiff's damages may be reduced by their share of fault.
Example: Tommy is at a waterpark and sees the line on his favorite ride is very short. Tommy runs to the slide even though there are multiple “no running signs.” Tommy trips on some torn rubber flooring and falls, hitting his head on the ground.
Under premises liability, the park may be liable for hazardous conditions, including torn flooring. However, Tommy may also be partially responsible for running when there were clear signs against running. Tommy's damages may be reduced by his own portion of fault.
Product liability cases also involve claims that the injury victim was responsible (or partially responsible) for the accident. 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
In California, strict liability can be imposed for the following types of product defects:
However, comparative fault still applies in cases of strict liability for product defects in California. An accident involving a defective product can be partially caused by the victim's own negligent actions. In these situations, the jury can reduce the plaintiff's award based on their share of liability in causing the accident.8
Example: Elaine just purchased a new vehicle with an “autopilot mode.” The vehicle instructions state that autopilot mode requires the driver to be attentive so they can react to any problems. Elaine drives by her old high school enemy's house to show off what she calls her “driverless vehicle.” Elaine drives by with her hands out the window yelling, “Look, no hands!” Elaine drives by again reclining all the way with her feet out the window.
Suddenly, the vehicle accelerates and crashes into a tree, injuring Elaine. She files a lawsuit for the driverless car accident. A jury determines the accident was caused by both a software malfunction and by Elaine's negligence. The car company may be strictly liable for the product defect. However, Elaine's negligence also contributed to the accident.
Elaine's damages would likely be reduced based on her portion of fault, as decided by the jury.
Sometimes both parties to an accident are at fault and both are injured. 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. After the jury determines the damages for each party and apportions fault, the damages will either be offset against each other or each party will receive separate awards.
Example: Jackie rolls through a stop sign at an intersection and is hit by Kevin, who is speeding in the opposite direction. Kevin sues Jackie for his medical bills and the cost of repairs to his vehicle. Jackie counterclaims for her medical bills and the property damage to her vehicle.
At the trial for this t-bone accident lawsuit, 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. Kevin is only 25% responsible.
As a result, Jackie is entitled to collect $25,000 from Kevin (25% of $100,000). But Kevin is entitled to collect $30,000 from Jackie (75% of $40,000).
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 the plaintiff and multiple defendants.
Example: Louis is walking to his car after dining at the Rack Shack. While in the parking lot, there are two customers fighting, Anthony and Ned. Louis tries to stop the fight but Louis is assaulted by Anthony.
Louis sues the Rack Shack under California premises liability laws for failing to provide adequate lighting and security. Louis also sues Anthony and Ned for battery. A jury determines that Louis' damages are $150,000.
The jury then attributes fault as follows:
The Rack Shack: 20%.
When the plaintiff is injured and two or more defendants are responsible, the plaintiff can recover from either or both of the defendants. This is known as “joint and several liability.” The plaintiff can recover the entire amount of damages awarded from any of the defendants liable for the injury.9
"Joint and several liability" reduces the burden of collecting damages from all responsible parties. It is then up to the defendants to sue each other for the contribution of the amount paid.
In California, "joint and several liability" applies to economic damages, including medical expenses, property damage, loss of income, loss of earning capacity. The percentage of non-economic damages (such as pain & suffering) may need to be collected from each defendant.
Example: In the above example, Louis has $50,000 in economic damages and $100,000 in noneconomic damages. 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 $20,000 of his noneconomic damages from the Rack Shack. Louis would have to collect the remaining $50,000 of noneconomic damages from Anthony and $20,000 of noneconomic damages from Ned.
Partially at fault for an accident? Call us for help...
For questions about how you can recover damages even if you were partially at fault in an accident or to discuss your case confidentially with one of our skilled personal injury attorneys, do not hesitate to contact us at Shouse Law Group.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Li v. Yellow Cab Co. (1975) 13 Cal.3rd 804.
- California Civil Jury Instructions (CACI) 406. See also 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.'”).
- California Civil Jury Instructions (CACI) 405.
- See CACI 406, footnote 2 above.
- California Civil Jury Instructions (CACI) 1001. (“A person who owns, leases, occupies, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.”)
- 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.”)
- See California Civil Jury Instructions (CACI) Series 1200 -- Products Liability.
- See California Civil Jury Instructions (CACI) Series 1207A -- Strict Liability -- Comparative Fault of Plaintiff. See also 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.”).
- 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.'”).