Comparative Negligence in California

When a person is injured as a result of another’s negligence, he or she can file a personal injury suit to recover compensation for the injuries. But the harm is not always solely the other party’s fault. Sometimes, the injured person has also been negligent, and that carelessness contributes to the injuries. California uses the comparative negligence standard to assess damages in situations where the injured person is partly at fault.

Comparative negligence is a partial defense to a personal injury claim for negligence. The party being sued, known as the defendant, claims that the injured person was partly at fault and that the injured person’s own negligent conduct contributed to the accident. The defendant must show that:

• The injured party was negligent; and
• The negligence was a substantial factor in causing the injury.

For example, a pedestrian jaywalks and is hit by a car that was running a stop sign. Though the driver was negligent in hitting the pedestrian, the accident would not have occurred had the pedestrian not jaywalked. Thus, the pedestrian was negligent.

After the injured party’s comparative negligence has been proven, the injured party’s damages will be reduced by the percentage of his or her fault. The jury determines the percentage of fault that will be assigned to the injured party and to the defendant, and the judge calculates the appropriate deduction.

For example, the pedestrian in the above scenario sustains injuries amounting to $100,000. Because he was negligent in jaywalking, the jury determines that he is 25 percent at fault in the accident. Thus, he can recover from the driver $75,000 of his total $100,000 in damages.

California uses the pure comparative negligence standard. This means that even if an injured person was 99 percent at fault in the accident, he or she may still recover damages from the defendant who was one percent at fault. The damages, though, will be far less than the total value of the injury.

Some other states that use comparative negligence require that the injured party be no more than 50 percent at fault. Otherwise, he or she cannot recover any damages from the accident.

Formerly, California used the contributory negligence standard. It meant that if the injured person had been at all negligent, contributing to the harm in any way, then he or she could not recover any damages from the other party at fault. This would apply even if the injured party was as little as one percent at fault, so defendants would look for any minor negligence in the injured person’s actions. California abandoned this harsh rule in 1975. Today, contributory negligence is used in only five states.