Many accidents do not only involve the fault of one party. In some cases, two or more defendants share the blame for a plaintiff’s injuries. In others, the plaintiff shares the fault for his or her own accident and injury. In this scenario, the plaintiff may or may not be barred from financial recovery depending on state law. California uses a pure comparative negligence law, meaning the plaintiff would still be eligible for at least partial recovery.
Comparative vs. Contributory Negligence Laws
There are two types of states: comparative negligence and contributory negligence states. Contributory negligence states are less common, largely due to arguments against these laws for being unfair to injured parties.
In a contributory negligence state, a plaintiff will lose all right to recover financial compensation from a defendant if found to be even 1% at fault for the accident. This means even if someone else is 99% to blame, the plaintiff is unable to recover anything for his or her losses.
California, however, uses a comparative negligence law. In comparative negligence states, a plaintiff can still recover damages even if he or she is partially at fault for an accident. However, his or her financial recovery will reflect the amount of fault allocated to the plaintiff.
The courts will subtract an amount proportionate to the plaintiff’s percentage of fault from his or her financial recovery. If the plaintiff is found to be 20% to blame, for example, the defendant would only be liable for paying 80% of the damages, meaning the plaintiff would surrender 20% of his or her recovery.
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What is “Pure” Comparative Negligence?
The “pure” part of California’s comparative negligence law means it has not modified the language of the law. In other words, a plaintiff can bear any percentage of fault, up to 99%, and still be eligible for financial damages.
In a modified comparative negligence state, on the other hand, the law bars a plaintiff from recovery at a certain percentage, usually 49% to 51%. If the courts find the plaintiff’s percentage of fault to be greater than the cap, the plaintiff will be ineligible for recovery.
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How Is Fault Determined?
Fault in a personal injury case is determined through an investigation of the accident. An insurance company will hire investigators and claims adjusters to search for evidence and piece together how the accident occurred. Then, the insurance company will do its best to diminish its policyholder’s degree of fault to save the carrier money. If the case goes to trial, both parties will present their cases to a judge or jury. It will then be up to the courts to allocate a percentage of fault to either one or both parties.
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How to Combat the Comparative Negligence Defense in a Personal Injury Case
Although your comparative negligence will not bar you from financial recovery in California, it can significantly reduce your award. It is important, therefore, to work with an attorney to combat this potential defense. A lawyer can help you prove the defendant’s majority share of fault, preventing you from a reduction of your award.
Proving a defendant’s fault takes establishing, using evidence, that the defendant owed you a duty of care, breached this duty, caused your accident and you suffered damages as a result. These are the four main elements to establish a personal injury lawsuit. If your lawyer succeeds in proving these elements as more likely to be true than not true, the defendant will be at least partially responsible for your losses.
From there, your lawyer can work to diminish your percentage of fault as much as possible to maximize your compensatory award. For more information about California’s pure comparative negligence law, as well as how it may apply to your case, consult with a personal injury lawyer in Los Angeles.
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