In most personal injury claims in California, the claimant, petitioner, or plaintiff, must typically show fault on the part of the respondent or defendant. On the other hand, the respondent or defendant can use fault to defend against personal injury claims. This defense in many states is known as comparative fault or comparative negligence.
At The Geller Firm, our personal injury attorney understands comparative fault and how to proactively counter this type of defense. It is critical to address it because if the respondent or defendant successfully uses it, it could mean the value of any compensation you recover is reduced or you could be denied compensation altogether. To help make sure this does not happen and to learn more about your legal options, contact us at 415-840-0570 today to schedule a free consultation.
What Constitutes Comparative Fault in California?
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.
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 California.
What Types of Personal Injury Cases in California Involve Comparative Negligence?
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.
How Can a Plaintiff Use Comparative Negligence to Benefit Their Case?
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.
How Can a Defendant Use Comparative Negligence to Defend against a Personal Injury Claim?
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.
Contact a Personal Injury Lawyer in California Today
As you can see, comparative negligence can help or hurt you – much of it depends on the facts and circumstances of your personal injury case. The key to getting the compensation you deserve for any and all of your injuries caused in whole or part by another person or entity is making sure you strategically address the comparative negligence rule of your jurisdiction.
At The Geller Firm, our personal injury attorney in California knows the law and how to make it work for you. To get a good understanding of how comparative negligence may impact your personal injury case, contact us either by using the online form or calling us at 415-840-0570 to schedule a free consultation. We will review your case and identify your next steps to recover just and fair compensation for the harm done to you.