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Comparative Negligence vs. Contributory Negligence – What’s the Difference?

Under California law, anyone who negligently injures another person may be found liable for all damages stemming from such injury. However, simply because someone is found to be at-fault following a car accident, truck crash, motorcycle accident or other personal injury does not mean that the victim is fault-free (or negligence-free) himself. A prior blog post (see Car, Truck & Motorcycle Accidents with Comparative Fault) discussed the fact that California abolished the historical notion of “contributory negligence,” in that where an injured victim was once found, for example, 55% responsible for causing the accident, they were completely barred from pursuing the party who contributed 45% of the harm. Now, under what is known as “comparative fault” or “comparative negligence,” the victim in the above example would be entitled to 45% compensation of the value of the claim, due to their relative fault for the accident. The use of the term “contributory” negligence or fault is not misplaced if used today, as long as the understanding/definition is clear. According to California Civil Jury Instructions 405, “Courts have found that it is not error to use the phrase “contributory negligence” in a jury instruction on comparative negligence: “The use by the trial court of the phrase ‘contributory negligence’ in instructing on the concept of comparative negligence is innocuous. Li v. Yellow Cab Co. [citation] abolished the legal doctrine, but not the phrase or the concept of ‘contributory negligence.’ A claimant’s negligence contributing causally to his own injury may be considered now not as a bar to his recovery, but merely as a factor to be considered in measuring the amount thereof.” (Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172]).”

The person responsible for the car, big rig, bicycle accident or motorcycle crash has the burden of proving comparative negligence on the part of the personal injury victim. And, according to Drust vs. Drust (1980), an instruction to the jury of contributory or comparative negligence should not be given unless there is substantial evidence of the victim’s fault. Where the defendant or at-fault party asserts that another individual or entity is partially responsible for the victim’s personal injury, a separate jury instruction should be given. According to California Civil Jury Instructions 406, the trier of fact will apportion responsibility amongst all tortfeasors so that the total amount of liability (including the victim’s, where applicable) will total up to 100%. Then, compensation will be divided up accordingly. Contact our personal injury attorney for a free consultation today if you have been injured in an accident due to someone else’s negligence, whether you are partially at-fault or not.

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