In a personal injury claim or lawsuit, the defendant may claim that the plaintiff’s own negligence contributed to their harm. This is called comparative fault.
Continue to read and learn about comparative fault in personal injury claims and lawsuits.
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Comparative Fault | Elements
To succeed on its allegation of comparative fault, the defendant must prove both of the following:
- That the plaintiff was negligent; and
- That plaintiff’s negligence was a substantial factor in causing their harm.
Example Scenario 1: Roxanne was driving eastbound, in the number 1-lane on Broadway in downtown San Diego. She was on her cell phone in violation of the no driving while using your phone laws. There was another car driving almost parallel to her in the number 1-lane. Both cars were headed eastbound. Romeo was driving southbound on 6th Ave approaching the Broadway intersection. He failed to stop for a red light and slammed into Roxanne. Roxanne was injured and filed an insurance claim against Romeo. The car in the number 2-lane was not hit because they saw Romeo coming and stopped before entering the intersection. Roxanne did not. Romeo may claim that Roxanne was comparatively negligent for looking at her phone when the collision occurred. He may allege that had Roxanne not been on her phone, she would have seen him coming and stopped. Just like the other car.
Comparative Fault | Reduction of Damages
If a defendant is successful in proving that the plaintiff was comparatively at fault for their injuries, the plaintiff’s damages are reduced by the jury’s determination of the percentage of the plaintiff’s
Example Scenario 1 (cont’d): A jury decided that Roxanne was 25% at fault for the collision in which she was injured. They also awarded her $100,000 in pain and suffering damages. Her ultimate award would be reduced by $25,000 by the judge and her ultimate jury verdict award would be $75,000.
Comparative Fault | Development
The doctrine of comparative negligence is preferable to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice. Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808.
Ordaz Law, APC | Comparative Fault
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Blog: Personal Injury