Dolan: Recovering damages when at fault in an accident

Q: “I was injured in a car accident last month. I just got the police report, and it says that I am partially at fault. Am I out of luck, or is there still some way to recover from the other driver for my injuries?”

A: That is an excellent question, Mika. First of all, let me say that I am sorry to hear of your injuries and I hope you are recovering well. To answer your question: Yes, in California you may still be able to recover from the other driver for your injuries.

This is a question that the law has considered since before cars were a primary means of transportation. Different states have adopted different ways of dealing with and analyzing accidents with multiple causes. Historically, states tended to adopt a “contributory negligence” approach. That approach completely precluded any person who contributed in any way to an accident from recovering anything.

In your situation, you would have been “out of luck.” That is clearly a harsh way of analyzing a complicated issue.
However, over time, the rules have generally relaxed. Now, many states use a “modified comparative negligence” standard. That standard allows a person to recover damages so long as they were not more at fault than the other person. Under that approach, as long as you were not more than 50 percent at fault, you would be able to recover.

Here in California, we use a “pure comparative fault” analysis. When two parties are at fault for an accident, either one may recover against the other no matter how much fault is attributed to them. However, they may only recover damages that were the fault of the other person.

This seems to be a sensible solution. It recognizes that people should be able to recover for the fault of others, but does not make anyone else liable for things that are one’s own fault.

Here is how it works in practice:

If a case goes to trial, the jury will be asked to determine the percentage of fault attributable to each party. They will also be asked to determine the total amount of damage suffered by the the person who brought the lawsuit. Then the total damages suffered are reduced by the percentage of the plaintiff’s own fault. For example, and using numbers that make for easy math, if the plaintiff suffered $100 in damages, but was 25 percent at fault for the accident, they would recover 75 percent of the total, or $75.

Even though most cases settle prior to trial, the analysis is important to understand. Assessing how much would be a reasonable settlement value requires looking at what a jury is asked to do and the likely outcome.

Since you live in California, in modern times, you may indeed be able to recover from the other driver for your injuries.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

Christopher B. Dolan
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Christopher B. Dolan

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