Personal Injury Lawyer in California: Understanding Comparative Fault Theories

Comparative fault, or comparative negligence, is a partial defense available in personal injury cases. Where both parties are at fault in an accident, comparative negligence allocates responsibility (usually on a percentage basis) and then limits the damages the plaintiff can recover accordingly. 

An example is a jaywalking pedestrian struck by a driver looking at their mobile phone. In this situation, the court could find that both parties' negligence contributed to the accident – 20% on the part of the pedestrian and 80% on the part of the driver. If the pedestrian is entitled to $50,000 in damages, their damages are reduced by 20% to $40,000.

Most states use comparative fault in personal injury cases, rather than contributory negligence. Where contributory negligence applies, a plaintiff is barred from recovering any damages if they contributed to the accident, even if that contribution is very minor. 

States apply comparative negligence in different ways by using either the pure comparative fault, modified comparative fault, or slight/gross rule. 

Pure Comparative Fault

Where the pure comparative fault rule applies, a plaintiff receives some damages, even if the accident was mainly their fault. So, if an accident was 99% the plaintiff's fault, they could still recover 1% of the damages they would otherwise be entitled to. 

Modified Comparative Fault

The modified comparative fault rule bars a plaintiff from recovering damages if they are 50% or more responsible for the accident. 

In some states, the rule applies to cases where the defendant is 51% or more responsible. This slightly different approach allows a plaintiff to recover damages where the parties are equally at fault.

Slight/Gross Negligence

Where the slight/gross rule applies, the court will only consider the parties' degrees of fault if the defendant's negligence is “gross” and the plaintiff's is “slight”.

To know which specific comparative negligence applies in your personal injury case, it is best to consult with our personal injury attorney in Los Angeles.

A defendant may raise comparative negligence in the context of any of the following:

• Car, truck, motorcycle, or other auto accidents including those involving pedestrians and bicyclists

• Medical malpractice, e.g., where a patient doesn't follow a doctor's post-operative instructions

• Dog bites, e.g., where a plaintiff provoked a dog

• Wrongful death, including workplace accidents

• Product liability, e.g., where the plaintiff used the product in a way not intended by the manufacturer

• Premises liability, including slip and fall accidents

How comparative negligence applies to a case depends on the jurisdiction and specific circumstances. 

Comparative negligence allows a plaintiff to claim some damages, even where they contributed to the accident and their subsequent injuries in some way. This may be useful in situations where a plaintiff failed to exercise reasonable care or otherwise behaved negligently. 

A defendant can use comparative negligence to limit their liability for damages in a personal injury case. In some jurisdictions, where the 50% or 51% rule applies, comparative negligence may bar a plaintiff from claiming any damages against a defendant.