One of the main concerns in personal injury cases revolves around how fault is determined in an accident. In this article, the Los Angeles Personal Injury Attorney will help you understand the difference between contributory and comparative negligence, which are used to determine fault in personal injury cases.

What is “Negligence” Under California Personal Injury Law?

The process of recovering damages in your personal injury case can have different outcomes. You may increase the odds of these outcomes becoming favorable by hiring an expert personal injury attorney. Through your attorney’s assistance, you should prove these three facts:

  • The respondent owed you a duty of care

  • You were harmed once the respondent breached the duty of care through negligence

  • The respondent breached the duty of care by being negligent

Pursuant to California’s personal injury law, people or entities owe a specific duty of care to other people or entities. For instance, employers have to provide their workers with safe working conditions. The type of duty care owed depends on the setting and the relationship between the parties. Negligence is regarded as the failure of a party to use their duty of care to prevent themselves or others from getting hurt.

Negligence may be defined as failing to do something a reasonably careful individual would do when subjected to a condition like yours. You can also define it as doing something a reasonably cautious individual would not do in a similar situation. Juries usually evaluate negligence by looking at what the outcomes of action would be if it were done by a reasonably careful individual. In this case, the person or entity that owes you a duty of care will be held responsible if their negligence exposed you to significant harm.


An ambulance driver (William) receives a call regarding a medical emergency in a residential area. William forgets to activate the vehicle’s sirens and drives quickly from the hospital to the scene at 50 mph. While driving through a four-way stop intersection, he strikes Jennifer's car from behind leaving the car damaged and Jennifer injured.

Since Jeniffer was not aware that an ambulance was approaching her car, she files a personal injury suit against William. She alleges in the lawsuit that William’s negligence in driving the ambulance resulted in her injuries. A jury awards her $2 million in damages after finding William responsible for the accident. The jury’s findings suggest that William had exclusive control over the ambulance, which caused Jennifer’s injury.

Who is Responsible for a Personal Injury Accident in California?

Personal injury accident lawsuits usually involve plaintiffs recovering money damages from a particular respondent. The general rule in these suits is that a plaintiff can recover 100 percent of their damages if the respondent is 100 percent to blame for the injury accident. Most injury victims are curious to know whether they are partially at fault for an accident.

In the State of California, the comparative negligence law helps split fault amongst the involved parties. As an injury victim, you will have your damages reduced depending on your degree of negligence at the time an accident occurred. When the respondent claims you are partly responsible for the accident, a California jury will agree on the percentage of fault linked to your negligence. This percentage will reduce your total award for damages.

Understanding Comparative Negligence

Under California’s law on comparative fault, a jury or judge has to decide responsibility in a personal injury trial. The jury will receive instructions based on your comparative fault as a plaintiff. The respondent in your case must prove you were negligent when blaming you for the accident. Proving that your negligence was a significant factor in causing your injury can also help the respondent transfer fault to your side.

Your damages will only be reduced by your percentage of responsibility if the respondent succeeds in proving negligence brought by you. In the determination of fault among the plaintiffs, respondents and other non-parties, the total percentage of the fault must be equal to 100 percent. In the trial, the jury will separately determine your damages without considering your percentage of fault. Your case will be concluded with you being paid a number of damages based on the respondent's responsibility for your damages.

Understanding Contributory Negligence

Since the State of California only follows the comparative fault standard, the contributory negligence standard is inapplicable to personal injury cases. Under this standard, you cannot recover any money damages even if you are partially to blame for your injury. Personal injury cases in the past were tried using the contributory negligence doctrine. The California Supreme Court replaced it with comparative fault law after deciding it was unfair back in 1975.

How the Contributory Negligence Standard Works

Only a few states in the country still follow the comparative negligence doctrine. These states include Virginia, North Carolina, Maryland, Washington D.C. and Alabama. In this rule, a judge or jury will deny your claim to recover damages even if you are 1 percent responsible for your injury.


When John is approaching a sidewalk in his home town in North Carolina, he notices that there is a construction site beside the sidewalk. Though he spots a notice indicating that the sidewalk is temporarily closed, he decides to walk through the closed area. As he passes on this area, a load from a crane falls and hits his head. John eventually sustains head and neck injuries from the accident and decides to sue the crane operator and construction company for the accident.

Based on the findings of a jury, the government, the cable manufacturer, the construction company and the crane operator are all to blame for the accident. The jury also assigns a 1 percent of the fault to John for walking in a closed section of the sidewalk. Since the accident took place in North Carolina, John will not be awarded any damages. However, if it occurred in California, John may recover $990,000 from a $1 million personal injury lawsuit.

What if You are Primary Responsible for the Personal Injury Accident?

The comparative negligence standard takes two forms, which include modified comparative negligence and pure comparative negligence. While other states follow the modified comparative negligence standard, California uses the pure comparative negligence standard. The pure comparative negligence standard allows plaintiffs to recover a portion of damages attributed to the respondents. With this rule, your award amount will be reduced based on your fault if you are primarily responsible for the accident.

The modified negligence standard, on the other hand, is divided into a 51 percent rule or a 50 percent rule. States following the 51 percent rule do not allow plaintiffs to collect their damages if their percentage of fault equals 51 percent or more. Consequently, states that follow the 50 percent rule do not allow plaintiffs to collect damages if their percentage of fault in an accident is 50 percent or more.

Which Law Will Apply When Both Parties File Personal Injury Lawsuits Against Each Other?

A typical personal injury case involves one party in an accident being injured while the other one is at fault. At times, both parties may be injured and be at fault for the accident. If you are a victim, in this case, expect the respondent to file a counterclaim once you file a lawsuit against them.

If the jury's findings link both parties to being responsible, the jury will separately determine fault and damages. Each party will be entitled to an award of damages once the jury apportions fault in the accident. Ultimately, each party will recover separate awards or have the damages offset against each other.

Can the Comparative Negligence Standard Work in this Scenario?

In case two parties are responsible for an injury, comparative damages will be awarded just like in a case with one respondent. The jury may apportion fault amongst all involved parties, which may include multiple respondents and the plaintiff. Each party’s percentage of fault will represent the fraction of the amount they should recover as damages.


While James is walking towards his vehicle after leaving a McDonald's restaurant, he notices two customers (Luke and Jeremy) fighting each other. Though he tries stopping the fight, Luke assaults him in the process. James decides to sue McDonald's pursuant to the premises liability laws of California. He bases his lawsuit on McDonald's failure to offer adequate security and lightning in the parking lot.

James also sues Luke and Jeremy for a crime of battery. When his case proceeds to trial, a California jury decides that he deserves $150,000 in damages. The jury also apportions fault amongst the parties involved in the lawsuit as follows: 10 percent for James, 50 percent for Luke, 20 percent for Jeremy and 20 percent for McDonald's.

What are the Legal Defenses to Negligence?

Both parties in a personal injury case need to present their sides of the story at trial legally. While you are trying to hold the respondent liable for your injury, expect the respondent’s lawyer to bring up various defenses. The various defenses to negligence in a personal injury claim are as follows:

  1. The Respondent Did not Owe You Duty of Care

    Since the duty of care is a crucial factor in determining negligence, respondents often deny any duties assigned to them. Business owners, manufacturers, drivers or property owners have a specific duty to prevent others from getting injuries. They may be considered negligent for breaching this duty. A respondent may deny being liable for your damages by refusing your duty of care claims.

  2. You (the Plaintiff) Assumed the Risk of Getting Injured

    A respondent can only claim you assumed the risk of getting injured when you engaged in an inherently risky activity such as hiking or working out in the gym. Most property owners or manufacturers ask you to sign an assumption of risk and waiver of liability agreement. Once you sign these agreements, you will be liable for any injuries suffered at their facilities or using their products.

    As much as it is legal to agree to assume the risk of an injury, you are still owed a duty of care. The provider of a product or facility you are using has the duty to exercise reasonable care to reduce your chances of being injured. Your lawyer can find an exception in the liability waiver you signed to challenge this defense.

  3. You Were Responsible for Your Injury

    Regardless of the facts and evidence you have to support your lawsuit, you may expect the respondent to blame you for the injury or accident. Your attorney can challenge this defense by uncovering facts and pieces of evidence holding the respondent responsible for your damages. Furthermore, the comparative fault law allows you to recover partial damages if you are partially to blame for an injury or accident.

Which Personal Injury Cases are Contributory and Comparative Negligence Standards Applicable?

Though contributory negligence and comparative negligence standards are different, they may be separately applied in various personal injury cases. The cases include auto accident cases, premises liability cases, and product liability cases. Here are the ways they apply to these cases.

Product Liability Cases

A product liability case focuses on holding manufacturers, sellers or designers of a product liable for any injuries caused by the product. The company or person does not have to be negligent for them to be strictly held liable for the injuries. Under California's product liability laws, strict liability is imposed on several types of product defects. They include inadequate working defects, design defects, and manufacturing defects,

While you are allowed to make a product liability claim against the responsible party, you can also be held liable for the accident or injury involving a product with defects. In California, the jury will have your award of damages reduced depending on your share of liability in the accident. In states such as Maryland and Virginia, you will be denied any award of damages if you partially caused the accident.

Premises Liability Cases

A premises liability case may involve an occupier suing a property owner for an accident or injury that occurred in a property with hazardous or dangerous conditions. A premises accident may occur in an amusement park, at the workplace or in a restaurant. Property owners have a duty of care, which mandates them to reasonably inspect and maintain their property. Their duty of care is also to warn occupiers of any hazardous or dangerous conditions and repair these conditions.

Both comparative negligence and contributory negligence doctrines can be applied to premises liability cases. When you are partially at fault in this type of case, a California jury may have your damages reduced based on your share of fault. However, if the accident occurs in a state with the contributory negligence doctrine enacted, you cannot seek any damages.

Auto Accident Cases

Examples of motor vehicle accidents include trucking accidents, head-on collisions, and ridesharing vehicle accidents. Others include bus accidents and accidents with a drunk driver. While auto accidents leave victims injured or at risk of severe injuries, damages are awarded once the fault is determined. As an injured motorist or pedestrian, you may sue the city, vehicle manufacturer, construction crew or the responsible driver.

Parties involved in an auto accident tend to blame each other for causing the accident. As a plaintiff, you may also blame non-driver respondents. Under the contributory negligence standard, you will not manage to recover the damages if you were at fault. However, the comparative negligence doctrine will allow you to receive a portion of the damages even when you were at fault.

What Types of Damages are Covered Under the Contributory and Comparative Negligence Standards?

Contributory and comparative negligence doctrines apply to personal injury cases seeking both economic and non-economic damages. Economic damages are considered tangible while the non-economic ones are considered intangible. As an injury victim, you may ask for economic damages such as medical expenses, lost income/revenue and loss of property whether these doctrines are applied. A forensic accountant will evaluate your performance against the normal standards to quantify economic damages after you have suffered an injury.

Since non-economic damages are intangible in nature, they help compensate severe pain, emotional distress, and physical distress. Others include loss of the ability to enjoy life, losses related to your reputation, the injury itself and disfigurement. They usually constitute of the incalculable losses you incurred following a personal injury.

Contact a Personal Injury Law Firm Near Me

The comparative negligence doctrine serves as a relief for injury victims denied damages when tried under the contributory negligence doctrine. Los Angeles Personal Injury Attorney, a law firm operating in Los Angeles, CA, helps solve injury cases based on the determination of fault. Proving that a particular respondent is to blame for an accident or injury helps increase the odds of your case having favorable outcomes. Call our Los Angeles personal injury lawyer at 424-231-2013 with any requests regarding a case evaluation or expert consultation from one of our personal injury attorneys today.