Comparative fault in California

Being partly at fault does not end a claim in California. It reduces it. A jury assigns each person a percentage of the fault, and your recovery drops by your share — but there is no threshold at which the claim disappears. This page is the doctrine. The practical, what-does-this-mean-for-me version is what if I was partly at fault?

It is general information, not legal advice.

Pure comparative fault

Before 1975, a plaintiff who was even slightly at fault recovered nothing — the old "contributory negligence" rule. The California Supreme Court threw that out and replaced it with pure comparative fault: the fact-finder assigns percentages of fault totaling 100 percent, and the plaintiff recovers the total damages minus the plaintiff's own percentage.

"Pure" means no cutoff. A plaintiff found 30 percent at fault recovers 70 percent of the damages. A plaintiff found 90 percent at fault still recovers 10 percent. This is a minority position — most states use a modified rule that bars recovery at 50 or 51 percent — so out-of-state assumptions do not carry over.

Sources: Li v. Yellow Cab Co. (1975) 13 Cal.3d 804; CACI No. 405 (comparative fault of plaintiff), Judicial Council of California Civil Jury Instructions (2026 edition).

How the percentages get decided

Fault percentages are not a formula. A jury hears the evidence and answers, on the verdict form, what percentage of the total fault belongs to each person, including the plaintiff. In a settlement there is no verdict form, so the adjuster and the lawyer negotiate around an implied percentage — each side's estimate of how a jury would split it.

What moves the number: the traffic law or safety code and who violated it, the physical evidence and any reconstruction, independent witnesses, and each person's opportunity to avoid the harm. Insurers assign the plaintiff a share aggressively in negotiation — you could have braked sooner, you were not in a crosswalk, you were going a little fast. Part of the work is keeping that percentage tied to what the evidence actually supports.

How fault is investigated and proven: how firms assess whether fault is clear · how fault is decided in a car accident.

More than one defendant: joint and several liability

When two or more people share the fault for your injury, California splits the treatment of the two kinds of damages:

• Economic damages (medical bills, lost earnings, future care) remain joint and several. Each defendant is fully liable for the whole amount. You can collect all of it from one defendant, and that defendant then pursues the others for their shares through indemnity. This matters most when one defendant is uninsured or insolvent.
• Non-economic damages (pain, suffering, disfigurement) are several only under Proposition 51. Each defendant pays only its own percentage share of those damages, and if one defendant cannot pay, that share is not shifted to the others.

Sources: Civ. Code, § 1431.2 (Proposition 51 — several liability for non-economic damages); CACI No. 430 (causation: substantial factor) and CACI No. 431 (causation: multiple causes); CACI No. 406 (apportionment of responsibility — the instruction given alongside CACI No. 405 when there are multiple defendants or non-party tortfeasors).

Fault of a non-party

A defendant can try to put empty-chair fault on someone who is not in the case — a phantom driver, a settled party, an immune employer. If the jury assigns that non-party a percentage, it reduces what the remaining defendants owe for non-economic damages. Identifying and, where possible, naming every responsible party is part of protecting the recovery.

Where comparative fault does not apply the usual way

• Intentional torts. A defendant who deliberately injured someone generally cannot reduce liability by pointing to the victim's negligence.
• Strict liability. In a dog-bite claim under the statute or a product-defect claim, comparative fault still applies, but the analysis focuses on the plaintiff's unreasonable conduct, not ordinary inattention.
• Statutes that protect a class. Some safety laws exist to protect people who cannot protect themselves, and a plaintiff's own conduct is weighed differently.

Common questions

What is pure comparative fault?

A rule that reduces your recovery by your percentage of fault but never bars the claim, no matter how high that percentage is. California adopted it in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.

Is California different from other states?

Yes. Many states use "modified" comparative fault that cuts off recovery once the plaintiff is 50 or 51 percent at fault. California has no such cutoff — a plaintiff found 80 percent at fault still recovers 20 percent of the damages.

Who decides the percentages?

The jury, or the judge in a bench trial. In settlement, the adjuster and your lawyer negotiate an implied percentage. It is an estimate of how a jury would apportion fault based on the evidence.

If two companies are at fault, do I have to collect from each separately?

For economic damages, no — each defendant is fully responsible and you can collect the whole amount from any one of them, leaving them to sort out shares. For non-economic damages, each defendant pays only its own percentage share (Proposition 51; Civ. Code, § 1431.2).