Breaking Down the Comparative Fault Defense

Breaking Down the Comparative Fault Defense

When tragedies occur in life, there is very rarely one single cause. The same thing is true of many car accidents in California. Especially after an intersection collision, both drivers might be at fault, at least morally. Legal fault is another matter, as outlined below.

Typically, Driver A was speeding or otherwise breaking a traffic law, and Driver B made an illegal lane change or otherwise broke a traffic law.

Even if a law enforcement or insurance company investigator says you were at fault for the crash, largely because of the nature of California’s comparative fault law, a San Jose personal injury attorney can still obtain substantial compensation for car crash victims.

Establishing the Defense

Contributory negligence is an affirmative defense. So, insurance company lawyers must admit that the insured driver was negligent. Then, they have the burden of proof, and the burden of persuasion, to show that the victim’s negligence, as opposed to the tortfeasor’s (negligent driver’s) negligence, substantially caused the wreck.

In this context, burden of proof is essentially a legal issue. Insurance company lawyers must convince a judge that the victim’s negligence could have caused the wreck.

Speeding is a good example. Drivers travelling 5mph over the limit are breaking the law and therefore possibly negligent. But very few people would say that speed is excessive enough to contribute to a car crash. If the driver was travelling 15mph over the limit, that’s another story.

The burden of persuasion is for the jury. A judge might rule that contributory negligence might have occurred. Only the jury can say that it definitely occurred.

Alcohol impairment is a good example in this situation. Technically, one sip of alcohol impairs most drivers. However, most jurors would not agree that people should not drive hope after they take a sip of communion wine. That’s especially true of most church-attending jurors.

Dividing Liability

If the judge allows jurors to consider contributory negligence, and the jury agrees that both drivers might have been at fault, they must divide liability on a percentage basis between the two motorists.

California is one of only nine pure comparative fault states. So, even if the victim was 99 percent responsible for the wreck, the tortfeasor is still liable for a proportionate share of damages.

Most other states, including neighboring Oregon, are modified comparative fault jurisdictions. Unless the tortfeasor is at least 50 or 51 percent responsible for the wreck, the victim is not entitled to damages.

Comparative fault could also affect vicarious liability matters. If the tortfeasor was driving a delivery truck, the delivery company could be financially responsible for damages. However, that financial responsibility is limited to the amount of the tortfeasor’s liability.

Contact a Dedicated Attorney

Most vehicle collision claims are legally complex. For a free consultation with an experienced San Jose car accident attorney, contact Solution Now Law Firm. We do not charge upfront legal fees in these matters.

Solution Now Law Firm

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