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What is Comparative Fault and How Does it Work?

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Jeff Sevey

Anyone can make a mistake. Life is oftentimes messy and accidents do happen. When an accident occurs and someone is injured, the law holds that the person responsible for causing the accident must pay for the cost of the injuries and damages that result. This is only fair.

When more than one person causes an accident that results in injuries, the law essentially deals with the situation in the same way. Each person responsible for causing injuries is responsible for paying for those injuries. This doctrine, known as joint and several liabilities, means that a party can sue everyone responsible for their injuries and, if they are found to be at fault, collect damages from all of them.

However, what happens when the person who was injured is also partially at fault for causing the accident that injured them? In this article, we’ll discuss how the law deals with these types of situations. Specifically, we'll look at the three legal doctrines that have developed around the issue and examine which one applies in the State of California.

Contributory Negligence

In many cases, deciding if a party is partially at fault for their own injuries is a complicated matter. Assigning a number to that fault is even more complicated. Historically, being partially at fault for your own injuries meant that you were barred completely from recovering damages. This concept, known as contributory negligence, was traditionally applied under English common law. In essence, it meant that even if a person was only 1% responsible for causing their own injuries, they were prevented from bringing suit.

The idea was that it was better to prevent a person from benefiting from their own negligence than it was to prevent others from being negligent in the first place. While this may sound odd to us today, contributory negligence developed at a time where only the good could hope for reward. Wrongdoers could only expect punishment.

As society became more industrialized, application of pure contributory negligence was increasingly seen as unfair. Industrialized societies have far more complicated interactions and, as a result, far more complicated accidents than agrarian societies. Soon, pure contributory negligence fell from favor and was replaced by a more humane alternative - comparative fault. Nevertheless, five U.S. states, Alabama, District of Columbia, Maryland, North Carolina and Virginia, still use the doctrine of contributory negligence today.

Comparative Fault vs. Contributory Negligence

Unlike contributory negligence, the doctrine of comparative fault allows a person who is partially at fault for their own injuries to recover damages. There currently are two types of comparative fault systems used in the United States - modified comparative fault and pure comparative fault. Let's take a look at both.

Modified Comparative Fault

In a modified comparative fault system, a judge or jury will decide upon the percentage of fault for each person responsible, and the damages awarded will be apportioned accordingly. But, if a victim’s percentage of fault reaches a certain level, that person may be prohibited from collecting damages.

There are currently 33 states that follow this modified comparative fault system, and of those 33, 12 states follow what is called the “50% rule”. For the twelve states utilizing the 50% rule, a victim in an accident will only be able to recover damages if the court determines his or her fault in causing the injury is 49% or less. If the court determines that the injured party’s fault is 50% or more, he or she will be barred from recovering any compensation for damages caused in the accident. The states that follow the 50% rule are Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia.

The remaining 21 states of Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming follow the 51% rule. The 51% rule states that an injured party can only recover damages if the court finds that they were 50% at fault or less. This means that if it is found that the injured party is 51% at fault, they can not recover any damages. Plainly speaking, if an injured party was half at fault for the accident, they can recover damages. If they were more than half at fault for the accident, they can not recover damages. And similar to a pure comparative fault state, the victim’s compensation for damages is reduced by the percentage of his or her fault for the accident.

Pure Comparative Fault

There are currently 13 states that follow a pure comparative fault system - Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington. In this type of system, the court finds the percentage of fault for each responsible party, and then allocates the total damage award according to the percentage. Using the pure comparative fault system, even if you were 99% at fault for the accident that caused your injuries, you may still recover damages, but your total award would be reduced by 99%. Using this example, if you were awarded $200,000, this would be reduced by $198,000 (99% of $200,000), and you would be left with the remaining $2000 as compensation.

California began using the comparative fault system in 1975 after the California Supreme Court saw a case where the court needed to rule who was at fault in a car accident where both drivers were responsible for the accident that occurred. The court ultimately chose the pure comparative fault, as it seemed the fairest, and the then-current system of contributory negligence seemed too harsh for the vast majority of cases, including this one.

Today, California continues to utilize the comparative fault system.

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