top of page

Comparative Fault

What is Comparative Fault?

California's comparative fault law, or comparative negligence, provides for the recovery of damages despite a person's partial fault in an accident. In the event of an accident caused by a 25 percent at-fault party, the liable party will only be required to pay 25% of the damages.

The state of California is considered a comparative fault state. Despite being 99% at fault for an accident, victims can still recover some damages. As opposed to a modified comparative fault doctrine, which is used in some states and prohibits plaintiffs from recovering damages if they are 50% or more to blame.

The jury in a personal injury suit will determine how much of the plaintiff's negligence was responsible for the injury. The plaintiff's percentage of fault will determine the damages award. If the plaintiff contributed to his or her own harm, the award will be reduced accordingly.

Personal injury cases in California can be decided on the basis of comparative fault. Car accidents, bicycle accidents, premises liability, slip and fall accidents, product liability, and medical malpractice cases are some of the most common types of claims that involve comparative fault.

Comparative Fault Law

Comparative Fault Law

Plaintiffs seeking compensation for personal injury accidents sue the defendant for money damages. The plaintiff may receive 100% of his or her damages if the defendant is 100% at fault for the accident.


A comparative negligence theory in California divides fault equally among all parties. A plaintiff has a right to reduce his or her damages based on his or her own negligence.


Plaintiffs who sue for personal injury claim the defendant caused some or all of the harm due to negligence on the plaintiff's part. Following the defendant's assertion of this claim, the jury will determine what proportion of fault is attributable to the injured party's negligence. The damage award will depend on this percentage.

Level of Responsibility 

Level of Responsibility 

Responsibility is generally determined by a judge or jury. In personal injury trials, the jury will determine whether the plaintiff was partially at fault. In a comparative negligence action, the defendant argues that the plaintiff was partly responsible for his or her injury due to the defendant's negligence. For the defendant to prevail on this claim, he or she must establish that both the plaintiff was negligent and that the plaintiff's negligence contributed substantially to the plaintiff's injury. 


By determining the plaintiff's percentage of responsibility, you reduce the plaintiff's damages. The fault among the defendants, plaintiffs, and any non-parties, the percentages must total 100 percent. The jury will then make a separate finding of the plaintiff’s total damages (if any). It will determine the amount of damages without consideration of the percentage of responsibility it assigns to the plaintiff.


Ultimately, each defendant will owe the plaintiff an amount equal to the percentage of damages (if any) for which it is responsible for the plaintiff’s total damages.

“Comparative” V. “Contributory"

“Comparative Fault” Versus “Contributory Negligence”

California is a comparative fault state. This allows the plaintiff to recover damages even if they share in some level of fault. The majority of states follow some version of comparative fault, either pure comparative fault or modified comparative negligence.


In the past, California followed the contributory negligence standard. Under that standard, someone who was even slightly at fault for an accident could not recover any damages at all. But in 1975, the California Supreme Court decided that was unfair. The court replaced contributory negligence with California’s comparative fault (or shared fault) law.


Contributory negligence is still followed in a number of states. This is a harsher rule that generally provides that if the plaintiff is at all negligent in causing his or her own injury, the plaintiff is barred from getting any damages.

Contributory Negligence 

Contributory Negligence 

Contributory negligence is still practiced in only a few states (Alabama, Washington, DC, Maryland, North Carolina, and Virginia). This rule would prevent the plaintiff from recovering damages even if he was 1% at fault.

At Fault 

At Fault 

There are two types of comparative negligence: pure comparative negligence and modified comparative negligence.

In California, comparative negligence is the standard of liability. In other words, the plaintiff can recover all of the damages that are the fault of the defendants. Even if the plaintiff is primarily at fault, the plaintiff can still receive some amount of award reduced by his/her own fault.

The standard of comparative negligence is modified in other states. State-based modified comparative negligence laws generally follow a 50% or 51% rule. A plaintiff who is more than 50% at fault for an accident cannot collect any damages. In a 51% rule state, a plaintiff who is at least 51% at fault cannot collect any damages.

Nevada follows a modified comparative negligence 50% rule. When a plaintiff is more than 50% to blame for an accident or injury, he or she cannot recover damages.

Auto Accidents 

Comparative Fault in Auto Accidents 

Accidents involving motor vehicles in California often involve comparative fault claims. An automobile accident is frequently complicated by the involvement of several parties and the existence of multiple proximate causes. A dui driver accident, a bus accident, a rideshare vehicle accident, a head-on collision, or a trucking accident may involve comparative fault.

It is common in multi-vehicle accidents for both parties to blame each other. Accidents can also be attributed to non-driver defendants, including construction crews, manufacturers, or the city.


A jury will determine the share of fault each party has in causing the injury in an auto accident if the defendant claims the plaintiff was partially at fault. If the defendant is responsible for causing the accident, the plaintiff's recovery will be reduced.

Premises Liability Cases

Comparative Fault in Premises Liability Cases

Premises liability is also a common source of comparative fault claims. Generally, the property owner or occupier is liable for dangerous or hazardous conditions on their property. These accidents can occur in restaurants, the workplace, or even amusement parks. As part of their "duty of care," property owners are obligated to maintain their properties, inspect their properties, repair potentially dangerous conditions, and give adequate warnings of potential dangers.

A hazardous condition combined with negligence is often the cause of accidents on private property. The plaintiff's damages may be reduced by their share of fault when they are partially at fault for a premises liability accident.

Product Liability Cases

Comparative Fault in Product Liability Cases

Often in product liability lawsuits, the victim of the injury is held responsible (or partly responsible) for the accident. People and companies who design, manufacture or sell products that are defective are strictly liable for injuries caused by those products, even if they were not negligent. The following types of product defects can be held strictly liable in California: manufacturing defects, design defects, and inadequate warning defects.


For product defects, California still applies comparative fault. The fault of the victim can play a part in an accident caused by a defective product. Depending on the plaintiff's liability in causing the accident, the jury can reduce the plaintiff's award.

Both Parties Sue Each Other 

Both Parties Sue Each Other 

Accidents often involve both at-fault parties and both suffer injuries. A counterclaim is filed by the defendant after the plaintiff files a lawsuit. The jury will determine damages and fault separately if both parties are partially at fault. In either case, the damages will be offset or each party will receive separate awards after the jury determines damages for each party and apportions fault.

Two Parties Responsible 

Two Parties Responsible 

In some cases, more than two parties may be responsible for the injury. There is no difference between comparative damages in that case and when there is just one defendant. Even the plaintiff and multiple defendants can be apportioned fault by a jury.

Two Parties at Fault 

Two Parties at Fault 

If two or more defendants are responsible for the plaintiff's injury, the plaintiff may be able to recover compensation from one or both of them. Any defendant liable for the injury must pay the plaintiff the full amount of damages awarded. In legal terms, this is called joint and several liability.


Liability for damages is shared among all responsible parties under "joint and several liability". A suit for a contribution of the amount paid then becomes the responsibility of the defendants.


According to California law, joint and several liability applies to economic damages such as medical expenses, property damage, loss of income, and loss of earning capacity. Each defendant may have to pay a certain percentage of non-economic damages (such as pain & suffering).

bottom of page