California “Comparative Negligence” Law – How It Works

California is a pure comparative fault state. This means after a car crash, fall, or other accident, you can still recover damages even if you were as much as 99% at fault.

At trial, a jury decides what percentage of your own negligence caused your injuries. Then the court reduces your payout by your apportionment of fault.

For example, if you sustained $10,000 worth of damages in a car crash you were 50% to blame for, you could recover $5,000.

In reality, most personal injury cases settle out-of-court without a trial. 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. 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 counter-sues?
• 7. What if there are multiple defendants?
• Additional Reading

1. How Comparative Fault Works

In many accident cases, 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

2. What if I was primarily at fault?

California is one of 12 states that follows a pure comparative negligent 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

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.²

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, 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.

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).

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

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

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 defects:

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

6. What if the defendant counter-sues?

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.

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%; the 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 (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.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.

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.

---

Legal References: