California Car Accident Compensation Laws: Pure and Modified Comparative Negligence

Medics providing emergency medical assistance after the road accident
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Were you involved in a car accident that may have been a little bit your own fault? Or more than a little bit? Don't worry; California is a “comparative fault” state. This has a big impact on who can recover what in an accident caused by the negligence of two or more people. Comparative fault, also called comparative negligence, is an important concept in personal injury litigation in California.

Negligence in California

In California, negligence is defined in reference to the duty every person has to use ordinary care. You will find the state's core negligence law at Civil Code Section 1714. It provides that every person is legally responsible for injuries caused by their lack of ordinary care.

If you are involved in a car accident, it is very likely that any action you bring against the other driver will be premised on negligence. A driver might have been driving too fast, driving while tired, distracted by something else, or tailgating. Any behavior that doesn't live up to the duty of using ordinary care to prevent injury to others can be negligence.

Read More: California Negligence Law: The Elements of Negligence

Elements of Negligence in California

In order to establish negligence in California, you must prove four elements. These include:

  1. Duty.
  2. Breach.
  3. Causation. 
  4. Damages.

Each of these elements is defined slightly differently than you might use the terms in ordinary life. The first element of duty refers to the duty to use ordinary care mentioned in the California Civil Code. If someone behaves as a reasonably prudent person would behave in the situation, they have not breached the duty of ordinary care.

Breach means not living up to that duty of care. Driving too fast for road conditions or weather conditions, driving while under the influence of drugs or alcohol or driving too close to the car ahead – all these are actions a reasonably prudent person would not take, and constitute a breach of the duty of care.

If the breach is the legal cause of the injuries to another person or their property, the elements of a negligence case have been established. Legal cause is clear enough in some cases, but less clear in others. For example, when a drunk driver with a red light plows into a person crossing the street in a proper cross walk, the driver's behavior causes the accident. But what if both parties to an accident are at fault?

Comparative Negligence vs. Contributory Negligence

Sometimes when a car accident occurs, both parties are at fault to some degree. For example, if two drivers are speeding and their cars slide on a wet road and collide, both are at fault. Likewise, if a speeding driver hits a pedestrian who is jaywalking across a busy street, both parties are at fault. What happens when the injuries are caused by the negligent behavior of both parties?

States faced with this situation usually opt for either a contributory negligence approach or a comparative negligence approach. California has tried both. For years it used the contributory negligence approach. Under this doctrine, if the person injured contributed to the accident to any extent, they could not recover against the other person in California.

Let's say one car has lost one of its headlights and it is struck head on by a semi going twice the legal speed limit. The car driver is adjudged five percent at fault for driving with one headlight, while the semi driver is 95 percent at fault for the excess speed. Under contributory negligence, the car driver could not recover a dime from the truck driver.

California and Comparative Negligence

If this seems an unfair result to you, you are not alone. The California Supreme Court tossed out contributory negligence in a 1975 case, and the state began using a comparative negligence approach, also called comparative fault. Under comparative fault, a party can get damages from the other party but only to the extent that they were negligent. The claimant's recovery is reduced by the percentage of fault attributed to him.

Adopting comparative fault principles comes from a recognition that most auto accident cases are not black and white, with one person a saint and the other a sinner. Instead of punishing a person who contributed in some small way to an accident by barring any recovery, comparative fault laws weigh the fault of each party. That makes each party responsible for their actions and the injuries that result from them.

But that is not the end of the decisions a state must make about liability when two or more parties behaved negligently. There are two different kinds of comparative negligence standards: One is called pure comparative fault and the other called modified comparative fault.

Pure Comparative Fault vs. Modified Comparative Negligence

Both pure comparative fault and modified comparative fault split the liability between two (or more) at-fault drivers, but they have different rules.

In both systems of comparative negligence, a finder of fact must determine the level of fault of each party in the accident. In a jury trial, one of the jury's duties will be to attribute fault between the parties. What happens next depends on whether a state has pure comparative fault or modified comparative fault.

Pure Comparative Fault

California uses a pure comparative fault system. This system reduces an injured party's recovery by whatever percentage of fault a jury attributes to him. Let's take an example of a car accident when both drivers were speeding and they were found to be 10 percent and 90 percent at fault respectively.

If the damages to the car driver who was 10 percent at fault totaled $100,000, the car driver would be responsible for 10 percent of that amount himself, or $10,000. He would be able to recover 90 percent of his damages, or $90,000, from the other driver.

What if the injured driver was 90 percent at fault in the auto accident? In California, under the pure comparative fault system, that driver would be able to recover 10 percent of his damages (here $10,000) from the other driver.

Modified Comparative Fault

In contrast, modified comparative fault only allows a driver to recover personal injury damages if that party is found to be less than 50 percent at fault. If he is more than 50 percent at fault, he is judged to be the predominant cause of the injuries and is not allowed to recover anything.

The outcome of this can seem harsh, since the difference between being 49 percent or 51 percent at fault can zero out any recovery. States using this rule argue that they are simply denying wrongdoers any reward when their own behavior was the main cause of the accident.

When Many Parties Are at Fault

In multi-vehicle accidents, each driver may claim that other drivers caused the accident. The jury will divide up the liability pie between all drivers and each injured person's recovery will be reduced by their own share of fault in causing the accident.

There doesn't have to be a pile-up on the freeway for there to be numerous different parties sharing fault for a California car accident. Parties can be at fault even though they were not behind the wheel, and these non-driver defendants can also be attributed a percentage of fault for damages. They can be the government responsible for road maintenance, construction crew or vehicle manufacturers, among others.


  • If you're involved in a car accident and need a lawyer, check out The State Bar of California's Finding the Right Lawyer page for information on how to find the right lawyer for you.

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