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What is Comparative Negligence in California?

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Comparative negligence, also referred to as comparative fault, is a legal principle used in tort law to determine the relative liability of defendants and damages available to personal injury accident victims. In other words, under California’s comparative negligence law, an injured victim can still recover damages or have the damaged levied against them reduced even if he or she is partially at fault for causing an accident. For example, Bill is involved in a car accident where he is found to be 20% at fault. Under comparative negligence law, he is liable for paying 20% of the damages which he has been deemed liable for.

Since California is a pure comparative fault state, this means that accident victims are still entitled to recover compensation even if they’re found to be 99% at fault for an accident. In contrast, some states prevent plaintiffs from recovering damages if they are found to be 50 percent or more at fault for an accident.


How is Comparative Negligence Used?

Comparative negligence is most frequently used to assign blame in car accident cases. When there is an accident, car insurance companies use comparative negligence to assign fault in accidents that occur in California. If there are two parties involved, insurance companies will assign blame to drivers based on a percentage value. Determining fault is an important aspect of insurance because insurance companies want to limit their liability as much as possible. They want to make sure that they’re only responsible for damages caused by individuals who carry an insurance policy with them. Additionally, defense attorneys will also attempt to limit the liability of their clients.

Damages are awarded based proportionally on the amount of negligence. The party that is found to be less responsible would still have a percentage of blame assigned­– that percentage of negligence is called contributory negligence. In other words, contributory negligence is a plaintiff’s failure to exercise reasonable care which created an unreasonable risk to themselves. This can prevent recovery or reduce the overall amount of compensation a plaintiff receives if his or her actions increased the likelihood that an accident occurred. Defendants commonly use contributory negligence as a defense.


Determining Comparative Fault

In personal injury accident cases, defendants will use comparative fault to reduce their liability. For example: In a car accident, a defendant might claim that the victim of the accident was also partially responsible for the crash because they were distracted from using their cell phone while driving. Liability is usually determined by either a judge or jury and if a jury rules that this behavior makes the injured party 25% responsible, then their total damages would be reduced by that amount.

Sometimes determining liability can be subjective but there are times when other personal injury claims can be used to establish a precedent to determine how much liability can be assigned for certain actions. For instance, if there are cases that are similar enough to a claim where there is a historic precedent that an action results in 25% of the liability being assigned to the plaintiff, juries can use that amount in the case they are responsible for.

In order for this to be effective though, a defendant’s claim that the plaintiff’s negligence contributed to his or her own injuries must be proven. For this claim to be successful, the defendant must show that:

  • The plaintiff was negligent.
  • The plaintiff’s own negligence was a significant factor that caused his or her injuries.

If the defendant can prove both above, the plaintiff’s overall damages must be reduced by the amount of liability assigned to the plaintiff. When splitting the fault among the plaintiffs, defendants, and non-parties, 100% of the liability must be assigned. Next, the jury will make a separate determination of the plaintiff’s total damages where they will decide on the amount of damages without considering the percentage of liability assigned to the plaintiff. In the end, each party will owe the plaintiff damages based on their percentage of fault.


What is Comparative vs Contributory Negligence?

Most states, including California, use the comparative fault doctrine because it appropriately assigns blame and consequence to the parties involved in a personal injury claim. The other system that is used is contributory negligence which has become outdated and tends to be less harsh on the plaintiff.

Here’s what you should know about comparative and contributory negligence:

  • Comparative negligence allows the plaintiff to recover damages even if they’re partially at fault. Damages are reduced by the plaintiff’s percentage of fault for the accident. California is a pure comparative fault state which means that accident victims can still recover damages even if they’re found to be 99% responsible for an accident.
  • Contributory negligence prevents the plaintiffs from recovering any damages if they are found to be partially responsible for causing the accident. Under this law, a plaintiff cannot recover damages even if they’re found to be 1% responsible for causing the accident.


Types of Comparative Negligence

Generally, there are three types of comparative negligence rules used in the United States. Each type of comparative negligence differs based on the percentage of negligence assigned to the parties involved in a vehicle accident.

  • Pure comparative negligence – Under the pure comparative negligence rule, plaintiffs are entitled to recover damages even if they’re assigned fault up to 99% for an accident. In this scenario, the plaintiff would recover 1% of the total damages assessed from the defendant. 13 states use pure comparative negligence including California, New York, New Mexico, Washington, South Dakota, Rhode Island, Missouri, Mississippi, Louisiana, Kentucky, Florida, Arizona, and Alaska.
  • Modified comparative negligence – Under the modified comparative negligence rule, plaintiffs can only seek damages if their percentage of fault falls under a set threshold. While some states cap this amount at 50%, others cap it at 51%. In other words, this means that you can only recover compensation if you’re 49% or less at fault for an accident or 50% or less at fault, respectively. Currently, 33 states have modified comparative negligence laws. Of those 33 states, 23 follow a 51% fault threshold while the other 10 states follow a 50% fault threshold.
  • Slight/gross negligence – South Dakota is the only state that uses a mix of both comparative and contributory negligence laws. Referred to as slight/gross negligence comparative law, this law states that a party might be able to recover damages only if the other party’s fault was gross (or great) and their fault was slight. Generally, gross negligence means willful and reckless disregard for another person’s safety. Under this law, if the plaintiff is only slightly at fault, he or she can still recover reduced damages accordingly based on their degree of fault. However, if the plaintiff’s fault is determined to be more than “slight,”, the state of South Dakota can completely bar recovery.


What Types of Claims are Impacted by Comparative Negligence?

Numerous types of personal injury cases are impacted by comparative fault law. In California, the most common comparative fault claims include:

  • Bicycle accidents
  • Brain or other catastrophic injury accidents
  • Burn accidents
  • Car accidents
  • Dog bites
  • Electrocution accidents
  • Medical malpractice incidents
  • Pedestrian accidents
  • Premises liability cases
  • Product liability cases
  • Slip and fall accidents
  • Truck accidents
  • Uber or Lyft accidents

If you were injured in any of the situations listed above, you may still be entitled to recover financial compensation even if you share some responsibility for the accident.


Comparative Fault in Car Accidents Claims

Car accidents can be the result of a negligent driver, pedestrian, animal, or government entity such as when the city fails to make road safety repairs. In California, car accident claims often involve comparative fault since most traffic accidents involve multiple parties and there could be multiple proximate causes for the accident. Common types of car accidents that could involve comparative fault include:

  • Bus accidents
  • Car accidents involving a driver under the influence (DUI)
  • Head-on collisions
  • Ridesharing vehicle accidents (Uber or Lyft)
  • Truck accidents

In car accidents that involve multiple vehicles, each party might try to claim the other party caused the crash. Parties could also try to put the fault on non-driving defendants such as vehicle manufacturers or construction crews.  Regardless, when a defendant claims the plaintiff is partially responsible for the accident, a jury will decide the proportion of fault each party is responsible for as it relates to the victim’s injuries. Ultimately, the plaintiff’s recovery will be reduced based on their share of fault for causing the car accident.

Proving fault is already challenging when it is just between you and another driver. Making sure that your portion of fault is accurately assigned is incredibly important and will be difficult without proper legal training and experience. Without the support of legal representation, you could end up taking on more liability than you are responsible for. If you decide to handle the claim yourself, the other party could end up convincing the judge or jury that you’re responsible for your own injuries­ – regardless of if you were not actually at fault for the crash. Victims should not end up paying for a disproportionate amount of medical bills, lost wages, or pain and suffering if they weren’t the only person responsible for your injuries.


Comparative Fault in Premises Liability Claims

Premises liability is another common source of comparative fault claims. Typically, a property owner or occupier is responsible for any dangerous conditions on their property. Premises liability accidents can happen anywhere including:

  • Workplace
  • Restaurants
  • Hotels
  • Retail shopping centers
  • Apartment complexes
  • Private homes
  • Amusement parks
  • Office buildings
  • Parking lots
  • Government property

People who own, possess, or control property in California have a duty of care to exercise reasonable care to:

  • Maintain their property
  • Inspect their property
  • Fix or repair any potentially dangerous, unsafe, or hazardous conditions
  • Provide adequate warning of any dangerous, unsafe, or hazardous conditions

Many accidents that happen on someone else’s property is usually caused by a combination of the dangerous condition and the injured victim’s negligence. If a plaintiff is partially responsible for his or her own injuries in a premises liability accident, the damages they can recover will be reduced by their share of fault.


How Does Comparative Negligence Work if Both Parties Sue Each Other?

It is not uncommon for a car accident or other personal injury claim to result in more than one injured party. If there are multiple personal injury claims that arise from one accident, comparative damages would be used to settle as if there was one defendant. Liability would be proportionately assigned to both plaintiffs and both defendants.


How Does Comparative Negligence Work When There are 2 or More Responsible Parties?

Sometimes there are two or more responsible parties for an injury. In this scenario, comparative damages work the same way as when there is only one defendant. A judge or jury will allocate fault among all parties­– including the plaintiff and defendants.

When a plaintiff is injured and there are two or more defendants responsible, the plaintiff can recover damages from either or both defendants. This is called joint and several liability. The injured plaintiff can recover the entire amount of damages awarded from each of the defendants for their injury. Joint and several liability minimize the burden of collecting damages from all responsible parties. The defendants would be responsible for suing each other for the contribution of the amount paid. Under California law, joint and several liability apply to economic damages such as medical expenses, loss income, loss of earning capacity, and property damage. The plaintiff might need to collect non-economic damages including pain and suffering from each defendant.


What Kind of Damages Are Recoverable Under Comparative Negligence Laws in CA?

Personal injury victims are entitled to various economic and non-economic damages under California negligence laws. Economic damages are intended to help restore a victim to their original condition and are objectively verifiable losses. Non-economic damages are compensation for subjective losses related to an accident.

Some common damages recoverable include:

Economic damages:

  • Lost wages
  • Lost earning capacity
  • Hospital bills
  • Medical bills
  • Property loss or damage
  • Rehabilitation or physical therapy expenses

Non-economic damages:

  • Emotional trauma
  • Pain and suffering
  • Psychological harm
  • Reduced quality of life
  • Loss of enjoyment of life

In some cases, victims can also get awarded punitive damages. In California, there is no cap on punitive damages in a personal injury case. If you were involved in a personal injury accident, contact our law firm to find out more about your legal options. Even if you were partially at fault, you may still be entitled to recover damages for your injuries.


Call Mesriani Law Group If You Have a Personal Injury Claim

Most comparative negligence claims must be filed by a specific deadline and injury cases involving government entities have an even short time limit. If you’ve been injured in Los Angeles, Santa Monica, Orange County, or anywhere else in Southern California, contact our personal injury attorneys as soon as possible. Mesriani Law Group’s attorneys have proven successful track records in obtaining maximum compensation for victims in personal injury cases. We accept clients on a contingency basis and that means if we don’t win your case, you don’t owe us anything. Learn about how you can protect your rights and obtain the maximum compensation for your injuries. Call our law firm today at 866-500-7070 for your confidential and free consultation.


Comparative Negligence FAQ

What is the difference between contributory negligence and comparative negligence?

Contributory negligence completely bars a plaintiff from recovering damages if they are even partially found to be at fault for an accident. This rule is absolute and states that even if you’re just 1% at fault for an accident, you would not be able to recover any damages. On the other hand, comparative negligence allows for the plaintiff to recover damages even if they are found to be partially at fault. Under comparative negligence, the plaintiff’s recovery amount would be reduced by their percentage of fault.

Why has the contributory negligence defense been replaced with a comparative negligence?

Over the years, the contributory negligence defense has been replaced with comparative negligence due to the extreme measures of the contributory negligence defense. Contributory negligence is the older form of the two theories of negligence, and it completely bars a plaintiff from recovering any damages if they are found to be in any way at fault for their injuries.

About the Author
Picture of Rodney Mesriani
Rodney Mesriani

Rodney Mesriani is the principal partner of the Los Angeles and Santa Monica based Mesriani Law Group. He specializes in personal injury and employment law while also being an accomplished litigator and trial attorney. Rodney is an aggressive negotiator and a well-known and respected attorney in the areas of practice he specializes in.

He earned his Bachelor of Science degree in Accounting from California State University Northridge before attending Southwestern School of Law where he received his Juris Doctorate. While being an accomplished personal injury and employment lawyer, Rodney Mesriani has made it a point to attend numerous State Sponsored MCLE events and seminars over the years as a law practitioner to be informed of the latest laws and litigation strategies.



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