comparative negligence law

In California when you have been involved in a car accident, it is important to understand your legal rights. California employs a comparative negligence system by which a plaintiff can recover from any at-fault defendant regardless of whether his or her own proportion of fault is higher than 51%. California follows a system to award damages to victims in auto accidents and other tort cases. One of the most common defenses that defendants will raise, especially in personal injury cases, is that it was actually the plaintiff who was at fault in causing his or her own injuries. There may be truth to this argument, or it may be just a ploy to intimidate the victim into not seeking recovery or into accepting a lower payment. In many states, plaintiffs who are over 50% or 51% at fault in causing the accident cannot recover at all from the defendant.

Li v. Yellow Cab Co., is a California Supreme Court case that set precedent for the doctrine of pure comparative negligence in California tort law, rejecting strict contributory negligence. Li (P) was struck by a cab driver for Yellow Cab Co. (D) as she was crossing three lanes of traffic to enter a gas station. The cab driver had been driving too fast and had run a yellow light. Li brought her lawsuit to recover for personal injuries and damages arising from the accident. The trial court entered a judgment barring damages for Li on the grounds that she had been contributory negligent.

Currently, there are 13 states that use a pure comparative negligence system of recovery. They are listed as follows:

Alaska Kentucky New Mexico
Arizona Louisiana New York
California Mississippi Rhode Island
Florida Missouri South Dakota


How Does Comparative Negligence Work?

Comparative negligence states that all parties should be liable for no more than their actual percentage of fault. Comparative negligence thus also tends to do away with other old common law concepts, most importantly joint and several liability, under which a plaintiff could recover all damages in an award from any, all or even just one defendant regardless of their relative degrees of blame. Comparative negligence is a system used to determine the relative liability of defendants and damages available to accident victims. In a pure comparative negligence jurisdiction, each defendant is only liable for his or her percentage of fault. A plaintiff is still able to recover damages in a pure comparative negligence jurisdiction, even if he or she was at fault in contributing to the accident. The ultimate award of damages for a plaintiff will be reduced by his or her own percentage of fault.

If you are injured in a car accident in California due to the negligence of someone else, you may be entitled to recovery of money damages in connection with your injuries and property damage or loss, even if the defendant or defendants claim that you were at least partly or even mostly at fault for what happened. For example, if a plaintiff’s total damages are $100,000, and the plaintiff is 25% at fault, the plaintiff can recover $75,000 of the damages and will be responsible for $25,000. Even if the plaintiff is 99% responsible for the accident, he or she can recover 1% of the damages. You should speak to a California personal injury lawyer to help review your case, if you have been involved in a car accident.

Four examples of this law are listed below:

Example 1
Paterson is swerving back-and-forth on a busy street. Hakim speeds up, exceeding the speed limit, to try to pass the swerving driver. Paterson smashes into the speeding driver. The swerving driver is likely the more at fault. However, Paterson could argue that he would not have crashed into Hakim’s car had Hakim not been speeding. That is a critical decision because the injured plaintiff’s recovery would reduced by his or her percentage of fault.

Example 2
Simon is drunk and is speeding on the highway at night. Gabriel is driving the speed limit, but his headlights are not on. Simon crashes into Gabriel’s car with no headlights on. Whatever percentage a jury decides based on the evidence it hears will be used to reduce the prevailing plaintiff’s recovery. If both drivers are hurt and sue each other, each would recover damages, having the full measure of his damages reduced by his or her percentage of fault as determined by the jury.

Example 3
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. 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. 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).

Types of Cases Involving Pure Comparative Negligence

In auto accidents involving pure comparative negligence, there are also certain cases in which a plaintiffs recovery may be reduced by his or her own negligence. Some of the behaviors that may contribute to a plaintiffs percentage of fault in auto accidents may include:

  • Texting while driving
  • Talking on a cell phone
  • Listening to loud music
  • Applying cosmetics
  • Consuming food or drinks
  • Fatigue
  • Reading maps or other materials



Victims involved in auto accidents should understand the system of recovery used in their jurisdiction, because a particular system may have a significant impact on their award. The different systems in practice include:

  • Comparative fault: the defendant is responsible for damages based on the percentage of fault attributable to him or her. Comparative negligence jurisdictions are further divided into jurisdictions that follow pure comparative negligence or modified comparative negligence.
  • Contributory negligence: a system that completely bars a negligent plaintiff from recovery. Even if a plaintiff is 1 percent at fault in an accident, that plaintiff will be unable to receive any compensation. The rule is renowned for its harsh effect on the recovery of plaintiffs.
  • Joint and several liability: a rule that enables a plaintiff to recover the entire award of damages from any liable defendant. The defendants then must sue one another for contribution. California has modified its application of joint and several liability and bars this rule in cases involving the recovery of non-economic damages. California still applies joint and several liability for cases involving medical expenses, loss of earnings, burial costs, property losses, costs of repair and other damages with a specific calculation.

Comparative VS Contributory Negligence

Comparative Negligence

Comparative negligence enables otherwise negligent plaintiffs to continue to recover for their injuries despite this negligence. States that follow comparative negligence use one of three rules:

1) Pure comparative negligence, allows a plaintiff to recover damages from the defendant minus his or her percentage of responsibility. For example, if a plaintiff’s total damages are $100,000, and the plaintiff is 25% at fault, the plaintiff can recover $75,000 of the damages and will be responsible for $25,000. Even if the plaintiff is 99% responsible for the accident, he or she can recover 1% of the damages.

2) In some modified comparative negligence states, a plaintiff will not recover if the jury determines he or she is equally responsible (50%) or more for an accident.

3) In other modified comparative negligence states, a plaintiff will not recover if he or she is found more responsible (51% or more) than the defendant. There may be variations on this rule.

Contributory Negligence

Contributory negligence acts as a total bar to recovery for negligent plaintiffs. While a defendant may raise either rule as a defense, the only effect of comparative negligence is to reduce the plaintiffs ultimate recovery by his or her own negligence. In contributory negligence cases, a defendant is totally relieved from liability due to a plaintiffs contributory negligence. The plaintiff is barred from recovering if he or she acted negligently and contributed to the accident at all. A plaintiff can be barred from recovering for being 1% or more at fault for an accident. In a state that follows contributory negligence, fault can be a very challenging issue in a lawsuit. For example, if a plaintiff is speeding in her car and another car cuts her off, she will not be able to recover if the jury determines she is even 1% at fault for speeding. Historically, contributory negligence was the rule in all states, leading to harsh results. Many states have since developed and adopted comparative negligence laws. Today, the jurisdictions that still use contributory negligence are:

  • Alabama
  • Maryland
  • North Carolina
  • Virginia
  • Washington D.C.

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