In order for a plaintiff to prove a defendant is negligent, the plaintiff must prove the defendant (1) owed a duty to plaintiff, (2) breached that duty, (3) the breach was the actual and proximate cause of plaintiff’s injury, and (4) the resulting monetary damage. However, for both plaintiffs and defendants it is not an all or nothing game in California. This is because California is a pure Comparative Negligence state.

            California’s Comparative Negligence law provides that even if a plaintiff is deemed 99% at fault, the plaintiff can still recover 1% in damages from a defendant. Thus, even if a plaintiff is deemed to be more than 50% (or even 99%) at fault for the incident, the plaintiff could still recover some monetary amount, or the defendant will still have to pay plaintiff, depending on how you see it. In most instances, a jury decides what percentage of fault to assign to each party.

            Just as a plaintiff must prove he/she/its negligence case against a defendant, if the defendant claims plaintiff was partially responsible for the incident, the defendant must prove plaintiff was also negligent and said negligence contributed to plaintiff’s injuries. The total amount of monetary responsibility distributed among all defendants and plaintiffs must equal 100%. As crazy as it may sound, a plaintiff found to be 99.9% at fault, is still entitled to recover 0.01% from a defendant in California.

            When multiple parties are involved, a jury (or judge) follows the same process to assign fault amongst all parties. A plaintiff suing four defendants can still recover monies if he/she/it is found 80% at fault. The remaining 20% could be divided between the four defendants. For example, 12% for the first defendant, 2% for the second defendant, 5% for the third defendant, and 1% for the final defendant. If multiple defendants are found “jointly and severally” liable for plaintiff’s damages, the recovery can be from one or all defendants found at fault. Defendants are free to file Cross-Claims against one another to apportion damages against a Cross-Defendant during the lawsuit.

            California was not always a Pure Comparative Negligence state. Almost fifty years ago, California followed the doctrine of contributory negligence until the California Supreme Court decided against it in favor of comparative negligence. (See Li v. Yellow Cab Co. (1975) 532 P.2d 1226). This meant that if a plaintiff contributed at all to an accident, there was no financial recovery. Thus, even if a plaintiff was found to be just 1% at fault, the plaintiff would recover nothing. Some jurisdictions outside of California still abide by this model (such as Alabama, Maryland, and North Carolina), but not the majority of states in our Union.

              Whereas California follows the Pure Comparative Negligence model, in Modified Comparative Negligence jurisdictions (such as Texas, Nevada, Connecticut, and Tennessee), a plaintiff may not be more than 50 – 51% at fault. If so, the plaintiff recovers nothing. Many insurance companies and corporate defendants favor this model since it deters lawsuits when plaintiff is clearly more at fault than the defendant.

            California’s Pure Comparative Negligence law affects how you prosecute and defend a case in so many ways. The goal is to examine the evidence and determine the possible percentage of fault between the parties. Once a determination is made, how a party proceeds towards trial or attempts to resolve a matter via private settlement discussions is greatly impacted knowing just a little possible fault from a defendant may result in a financial payout to a more at fault plaintiff.