Comparative Negligence

Comparative negligence comes into play when the accident victim contributed to the accident regardless of whether his negligence is only slight. The doctrine is unfavorable to the victim as it has the effect of denying them compensation for the injuries they sustained. 

Understanding comparative negligence is helpful in the estimation of damages. Often, some victims get surprised to see an award of damages reduced because of their comparative negligence. Understanding how comparative negligence works gives the victim a bird’s eye view of what to expect.

This article will cover a short overview of the topic of comparative negligence. Involved in an accident and have questions regarding your case? Call car accident attorney Jin Kim at (916) 270-6880 for a free consultation.

The comparative negligence system allocates fault between the parties involved in an accident. Under California law, where both parties are at fault or are negligent, the amount of damages is determined according to the percentage of negligence committed by each party.

A driver can raise comparative negligence as a partial defense in a car accident case. The defendant has to allege and prove that the plaintiff is partially at fault. Moreover, the plaintiff’s negligence must have contributed to the accident. If established that the plaintiff shares a part of the blame, the court may reduce the amount of damages they could have claimed. For example, a court may find that the driver was 70% at fault while the plaintiff/victim was only 30%. Under the comparative negligence system, the plaintiff/victim can only recover 70% of the damages ordered in this scenario. If the damages amounted to $100,000, the victim could only claim $70,000 in damages from the driver.

The question of whether or not the pedestrian has committed comparative negligence depends on the circumstances. For example, some local jurisdictions prohibit pedestrian crossing outside a crosswalk. Failure to observe this would automatically lead to a presumption of negligence.

Comparative negligence is seldom charged if a pedestrian uses a crosswalk as usual, even if the pedestrian failed to look out for the oncoming traffic. A pedestrian who uses the crosswalk is entitled to assume that the drivers will yield to them; after all, drivers must exercise ordinary care.

Meanwhile, a pedestrian who crosses a street outside of a crosswalk should exercise greater care. Failure to exercise this can lead to a finding of comparative negligence. Greater care, in this case, means looking out for traffic and yielding to cars. Whether or not a pedestrian who did not use a crosswalk exercised greater care is a question of fact.

Comparative negligence cannot be imposed upon a child under five (5) as they are considered incapable of negligence. Comparative negligence could not be used as a defense even if the child pedestrian ran into a street without looking. Minors aged five (5) years or older are expected to exercise only a level of care expected of a child their age.

A person who is working on the roadway is not expected to look out for traffic constantly. However, this rule is inapplicable to the following: 

• A person working in the roadway for personal convenience
• A worker who suddenly moves in front of an approaching vehicle

A person who intentionally risks his safety cannot be said to have committed comparative negligence due to the so-called ‘rescue doctrine.’ The doctrine applies in the following circumstances: 

• When human life was apparent, although perhaps not actually, in danger
• Whether the danger was created by the defendant or another person resulted from some innocent cause. 
• When the rescuer acted to protect property

The injured rescuer must have been injured while attempting a rescue. This doctrine will not apply in case the actions of the rescuer were rash or reckless.