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What is comparative fault in negligence claims?

I had a trial recently that involved a woman who fell on another person’s property.  During the closing argument, the defense attorney stated, she wore the wrong shoes for the weather and wasn’t looking where she was going, so you should give her nothing.  When I got up to argue, I said, I don’t believe that the evidence showed that her footwear was inappropriate or that she was not cautious where she stepped but, even if you buy that argument, this doesn’t mean you must award her nothing.  This means that you must decide how much comparative fault, if any, you attribute to my client versus the culpability of the defendant.

What does it mean to apportion responsibility for an injury causing incident?

Prior to the concept of “comparative negligence” was a concept of “contributory negligence“, which was that, if the plaintiff (person harmed bringing a complaint for money damages) was at fault more than the defendant (person or persons against whom the civil petition is brought), then they received nothing.  This rule was abolished in California by the seminal case of  Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 810 [119 Cal.Rptr. 858, 532 P.2d 1226] , where the court concluded that the “all-or-nothing” rule of contributory negligence should be abandoned in favor of a rule that assesses liability in proportion to fault.  What this means is that the injured person may still receive compensation even if they are partially culpable.

Why is this concept important for the afflicted party?

There are very few calamities that are 100 percent the fault of one party or another.  Scenarios such as rear end collisions while a person is stopped, intentional acts like assault or abuse and other instances are the exception to this rule.   However,  the legal cause of most mishaps can be attributed to both the person aggrieved and the person who was responsible in some way for causing the incident.  The law provides for a person to still be compensated even if they “contributed” in some way to their own misfortune so long as there are one or more other persons or entities that also were responsible for the cataclysm causing bodily harm.

What are some common examples of multiple party fault?

  • Auto v. Pedestrian or Bicycle Rider:
    The California Vehicle code requires all drivers of motorized vehicles to yield the right of way to pedestrians at marked or unmarked crosswalks and allows bikes to share the road.  It also states, however, that the pedestrian or bicyclist has a duty not to enter the path of a moving car or truck.  Oftentimes, this is a case of some fault on the person walking or biking within or near a roadway but, as much or more liability on the part of the driver that strikes them.   The walker, jogger or pedal pusher may still receive payment for such an incident.
  • Motorcycle v. Car or Truck: A common example here is splitting lanes.  This is not illegal to do under the laws of the Golden state.  However, it may reduce the liability of a motor vehicle operator if it can be shown that this or other conduct contributed to the crash.  This doesn’t mean, though, that the auto or truck driver gets off “Scott Free”.
  • Not wearing a seat belt: Obviously, it is not wise to drive without a proper lap and shoulder safety harness locked  in place.  However, if one fails to do so and is injured by another party due to some type of equally or worse unreasonable behavior (such as violation of speed laws, running red lights, DUI, etc.) the victim of the mishap may still receive money damages.  These damages may be reduced by the fault for not using a seat belt but, may not be eliminated.


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