California's “comparative fault” law lets people recover damages in a personal injury case even when they are partially to blame for an accident or injury.
California's “comparative fault” law is sometimes referred to as “comparative negligence” or “shared fault.” Unlike the shared fault laws of some states, a plaintiff who is more than 50% responsible for an injury is still allowed to recover.
The jury will simply apportion the fault. The plaintiff can then recover from the defendant the percentage of his or her damages for which the defendant is responsible.
Example: Bill crosses the street against a red light. He is struck by Dan, who is driving over the speed limit. Bill sues Dan for his medical bills, lost wages, and pain and suffering. But Dan claims that by crossing on a red light, Bill is responsible for his own injuries.
The jury determines that Bill's total damages amount to $100,000. But they also agree partially with Dan. They hold Bill 60% responsible and Dan 40% responsible. Under California's “shared fault” law, Bill is entitled to recover $40,000 (40% of $100,000) from Dan (or, more likely, Dan's auto insurer).
To help you better understand California's comparative fault law, our California personal injury lawyers discuss, below:
- 1. "Comparative fault” versus "contributory negligence" in California
- 2. How is responsibility apportioned in a California comparative fault case?
- 3. What if the plaintiff is more than 50% responsible?
- 4. How does California's shared fault law apply if both parties sue?
- 5. How does comparative negligence work when there are more than two responsible parties?
You may also wish to review our article on "Proving Negligence in a California Personal Injury Case."
Normally in a California personal injury case, the jury must simply decide if the defendant is responsible for the injuries the plaintiff is claiming.
But often the defendant will claim that the plaintiff is the one wholly or partially responsible for the accident or injuries.
In the past, California adhered to a “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.
Under California's shared fault law, when more than one party is to blame for an injury, the jury can apportion responsibility among each of the parties.2
When more than one party is at fault in a California personal injury case, the jury will assign a percentage of responsibility to each party. The percentages must total 100 percent.3
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.
Afterwards, each defendant will owe the plaintiff an amount equal to the percentage of damages (if any) for which it is responsible X 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 determines that Quentin's injuries total $30,000. They agree with Paul, however, that Quentin instigated the attack. They hold Paul one-third responsible for letting the dog run off-leash and Quentin two-thirds responsible for throwing a rock at the dog. 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.
In some states (such as Nevada), a plaintiff is barred from recovering damages if he or she is more than 50% responsible for an accident or injury.
That is NOT the case in California. Under California's law on comparative negligence, a plaintiff can recover if the defendant is at all to blame for the plaintiff's injuries.
Example: Martin's employer discovers a leak in the men's bathroom that is making the floor slippery. It posts wet floor and "out of order" signs. It then sends an email to all employees telling them to use the women's bathroom until the leak is fixed.
But Martin ignores the warnings and uses the men's bathroom. As a result, he slips and hits his head on the sink. He sues his employer for his medical bills, lost wages, and pain and suffering.
A jury determines Martin's damages total $50,000. They also agree that the company largely acted responsibly but think the company should have locked the men's room door. As a result, they hold the company 20% responsible and Martin 80% responsible. The company must pay Martin $10,000 (20% of $50,000).
Sometimes both parties to an accident are at fault and both are injured. In such a case, after the first party files suit the defendant will file a counterclaim.
If the jury determines that both parties are partially at fault, it will determine damages and fault separately. Then 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 property damage.
The jury determines that Kevin's damages are $40,000 and Jackie's damages are $100,000. But they also determine 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 exactly the same way as when there are just two parties involved. Note that one or more parties may not be involved in the lawsuit.
Example: Louis is walking to his car after dining at the Rack Shack. While in the parking lot, he is assaulted and injured by a homeless man, Ned.
Louis sues the Rack Shack under California premises liability laws for failing to provide adequate lighting and security. A jury determines that Louis' damages are $100,000.
The jury then attributes fault as follows:
- Louis: 5%
- Ned: 75%
- The Rack Shack: 20%.
Louis is able to recover 20% of his damages ($20,000) from the Rack Shack. Note that Louis didn't bother suing Ned, since Ned has no assets.4
Partially at fault for an accident? Call us for help…
If you have been injured as the result of a car accident, a slip-and-fall accident, a dog bite, premises liability or any other personal injury, we invite you to contact us for a free consultation.
You may be entitled to compensation even if you were partially at fault.
Call us at (855) 396-0370 to discuss your case with a caring California personal injury attorney.
Don't decide it's your fault until you've spoken to a lawyer. If you deserve money, we will fight to get it for you. And you pay us nothing unless and until we get a settlement or judgment in your favor.
If you were partially at fault for an accident in Nevada, you may wish to review our article on Nevada's modified comparative negligence law.
- Li v. Yellow Cab Co. (1975) 13 Cal.3rd 804.
- California Civil Jury Instructions (CACI) 405.
- CACI 406.
- Facts based on Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1.