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How Pure Comparative Negligence Works in California Personal Injury Cases

Offered by Clancy & Diaz, LLP

Know how complicated situations can affect your legal rights

The principle at the heart of any personal injury case is simple: if someone else's negligence or recklessness caused your accident, then they should pay for the costs of the injury, including your medical expenses, lost income, pain and suffering, and other losses. That's true whether you were injured in a car accident, slip and fall, or any other incident caused by negligence.

However, the way these cases play out in practice can be much more complex. In particular, what happens if you were in an accident where you were partially at fault? Different states answer this question differently, and California is one of several that use the "pure" comparative negligence standard.

What is comparative negligence?

Comparative negligence is a legal doctrine used to apportion fault for an accident. In simple situations – say you were rear-ended while stopped at a stop sign and the driver of the rear vehicle is clearly at fault – then the at-fault driver needs to pay 100% of the compensation for the accident. In more complex situations, such as multi-vehicle accidents, the law apportions compensation proportionally to each party's share of fault.

For example, suppose you're hurt in a multi-vehicle accident causing $100,000 in damages, in which two other drivers are 70% and 30% at fault. Those damages would be split proportionally, so the first driver would have to pay $70,000, and the other driver would have to pay $30,000.

What does "pure" comparative negligence mean?

Every state uses comparative negligence in some form, but each state has its own rules in cases where the plaintiff (the injured person) is also one of the at-fault parties. Many states use the "modified" comparative negligence standard, which says that you can still recover compensation if you are partially at fault, but you cannot recover if you are above a certain percentage of fault (either 50% or 51%, depending on the state). A few states use the old "contributory negligence" standard, which says you cannot recover at all if you are even partially at fault.

However, California's "pure" comparative negligence rule means that no matter how high your percentage of fault, you can still recover compensation for whatever portion of the damages was not your fault. Put another way, you can still recover, but your percentage of fault will reduce your recovery.

Let's return to the example above. If you are the driver who is 70% at fault, then in many states, you wouldn't have a case. But in California, because of the pure comparative negligence rule, you can still go after the other driver for the $30,000 that is their responsibility.

In theory, even if you are 95% at fault for an accident, you can still sue the defendant responsible for the remaining 5% of the damages – although, depending on the situation, this may be impractical. Only an attorney can tell you whether you have a viable case.

Comparative negligence is one reason why legal representation matters

While being partially at fault for an accident can't ruin your case entirely in California as in some other states, it can still dramatically reduce the compensation you recover. That's one of the reasons you need an experienced attorney who can investigate your accident, find evidence of fault, and, if necessary, retain the right experts to minimize the blame that falls on you and maximize your recovery.

For example, a car accident case might involve hiring accident reconstruction specialists who can explain what happened. It may also include gathering physical evidence from the scene and cross-referencing witness testimony. In a slip and fall case, your attorney may need to hire relevant experts on building codes and safety standards to explain the role of the property owner's negligence in your injury. The same is true in any injury case: the more evidence you have supporting your claim, the stronger your position in negotiations and, if necessary, litigation.

It's also why you need to act quickly and get legal representation as soon as possible. An attorney can investigate and preserve evidence before it disappears. Just as importantly, once you hire an attorney, the insurance company for the at-fault party has to talk to your lawyer instead of you directly. Insurance adjusters are trained to ask leading questions and get injured people to inadvertently admit fault for their injuries. An attorney who knows the law and the system can protect your rights by dealing with them on your behalf.

The sooner you talk to a personal injury attorney, the better

If you're worried about the cost of hiring a personal injury attorney, remember that most of them work on a contingency fee basis. That means you don't pay out of pocket; you pay only if your attorney secures a favorable settlement or jury verdict. Moreover, the initial consultation is free, so you have the opportunity to get answers about your potential case without any cost or obligation to hire.

If you've been injured in California, even if you think the accident was partially your fault, don't assume you don't have a case. Only an attorney can assess your situation and advise you of your legal options. Talk to a personal injury lawyer in your area today.

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Clancy & Diaz, LLP
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Founded in 2007, Clancy & Diaz, LLP is a personal injury law firm with offices in Walnut Creek and Antioch, CA. Attorney Pete Clancy is a highly regarded trial attorney who has wo...