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In every type of negligence action in which a plaintiff brings suit against a defendant for physical injuries or injuries to property, that plaintiff is going to have to prove that the defendant is at least partially at fault for causing the plaintiff’s losses. One of the most common defenses that defendants will raise, especially in personal injury cases, is that it was actually the plaintiff who was at fault in causing his or her own injuries. There may be truth to this argument, or it may be just a ploy to intimidate the victim into not seeking recovery or into accepting a lowball payment, or it may be a mix of both. And while it is the case that a plaintiff will not be able to recover from a defendant at trial if he or she is unable to prove by a preponderance of the evidence that the defendant was partially at fault, the defendant cannot prevent the plaintiff’s recovery simply by demonstrating the plaintiff was also at fault. Instead, California courts will apply a concept interchangeably referred to as “contributory negligence” and “comparative negligence” to reduce the plaintiff’s recovery.

The History of Contributory Negligence in California

In most jurisdictions, the concept of contributory negligence did originally mean that a plaintiff who was partially at fault in
causing his injuries could not recover at all from a defendant, even if the plaintiff was 1% at fault and the defendant was 99% at fault. And this was the way the judicial system worked in California as well based on an 1872 California code that courts for many years interpreted to mean that plaintiffs were entitled to “all-or-nothing” recoveries when bringing personal injury suits, meaning they should recover all damages from a defendant or none at all.

That changed when the California Supreme Court decided the 1975 case of Li v. Yellow Cab, which involved a 1968 car collision at the intersection of 3rd and Alameda just west of downtown Los Angeles. In that collision, the plaintiff had swerved across three lanes of traffic to turn into a gas station when she was struck by a cab driver coming in the opposite direction. The cab company argued the plaintiff should be barred from recovery because of her alleged negligence in swerving across the lines, despite whatever negligence the cab driver exhibited. The court disagreed, and did away with the “all-or-nothing” contributory negligence rule in favor of the comparative negligence rule that is employed in California courts to this day.

How Comparative Negligence Works

In the words of the court in Li v. Yellow Cab, the comparative negligence rule means that, “Therefore, in all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”

Thus, if a plaintiff suffered $1,000,000 in damages and was 40% at fault in causing an accident, while the defendant was 60% at fault, then the plaintiff can recover $600,000 in damages from the defendant, which is $1,000,000 diminished by the 40% ($400,000) of fault attributable to the plaintiff.

In many states, plaintiffs who are over 50% or 51% at fault in causing the accident cannot recover at all from the defendant, but California employs a “pure comparative negligence” system by which a plaintiff can recover from any at-fault defendant regardless of whether his or her own proportion of fault is higher than 51%.

Note, that while many sources use “contributory negligence” to refer to the outdated “all-or-nothing” rule, many attorneys and judges still use “contributory negligence” to refer to California’s current pure comparative negligence rules.

Experienced Southern California Personal Injury Attorneys

The attorneys at The Kaufman Law Firm has consistently won six- and seven-figure verdicts and settlements on behalf of injured victims across Southern California. They will work with you from the moment you call to investigate your matter and build your best possible case for recovery. Contact The Kaufman Law Firm today to schedule a free consultation.

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