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EP#4: Understanding California's Comparative Negligence System
Stepping beyond the common misconception that fault in accidents is black and white, this episode unravels the nuanced reality of California's comparative negligence system. Attorney Alessandro Asante reveals how this legal framework fundamentally transforms personal injury cases, allowing recovery even when you're partially—or even mostly—at fault.
Whether you've been involved in a car accident, slip and fall incident, or even a medical malpractice situation, understanding comparative negligence could mean the difference between walking away with nothing and receiving the compensation you deserve. Contact Assanti Law at 949-540-0439 or visit AssantiLaw.com to discuss your specific situation and learn how these principles might apply to your case.
Visit assantilaw.com to learn more.
There may be not one but more people at fault for the accident. Sometimes you have a person that rear-ends somebody and the person was sitting there, innocently, stopped and waiting for traffic to proceed and he gets rear-ended. No question that there is a pretty line, a pretty definitive line of who was at fault, and that's usually 100% at fault, right.
Intro/Close:Welcome to the Advocate Source, where we simplify the law for life's toughest moments, From personal injury to family disputes and business conflicts. We're here to help you understand your rights and take action you understand your rights and take action.
Charlie McDermott:Well, welcome back listeners and viewers to the Advocate Source Once again, producer Charlie McDermott, here with attorney Alessandro Assanti. Alessandro, how are you doing today? Good, charlie, how's everything? Nice to see you, great to see you. Great to see you. And, once again, appreciate you finding the time for this and sharing your wealth of experience with your listeners all over California and beyond, I'm sure. But today, another important topic the understanding California's comparative negligence system. Are you ready to delve into that?
Alessandro Assanti:Oh yeah. No, that was a great topic and yeah, that's certainly one that a lot of people don't know. Yeah, and there's different statutes in other states, so yeah, All right, all right.
Charlie McDermott:Well, let's start with what is comparative negligence and why is it important for people involved in personal injury cases to understand.
Alessandro Assanti:Yes, sometimes people say, well, this person is at fault, so I should recover. Or you have a client that comes in and says you know I might have been speeding, so I probably am at fault in this accident. And I say, okay, let's look at some of the situation involving the case. So, comparative fault means that it's not an on or an off switch. So, for instance, if a person is 51% negligent, that means he can recover and the other person can't. Okay, what that? What they do in California is. They say a comparative fault means that it goes according to percentages. You can be more at fault for an accident and still recover if the other person has some culpability or fault as well. And it goes, it's fluid, like a percentage. You can be 41% negligent, you can be 90% negligent, you could even be 99% negligent. And it is a system that has benefits and burdens. The benefit is well, let's talk about the burdens first. The burden of that is a comparative fault state leads to more litigation, because then people start arguing about you know who was at fault. And then you start to claim well, what are my injuries? And so it leads to people saying, well, you know, I'm going to abandon my case and not worry about it because I was mostly at fault, so I will lose the case. That is a, that is a state that has no comparative liability in California, but, however, it is a very equitable I'd say more fair system because it accurately it should be accurately assesses who's at fault, because, as you know, when people are involved in accidents there may be not one but more people at fault for the accident.
Alessandro Assanti:Sometimes you have a person that rear-ends somebody and the person was sitting there, innocently stopped and waiting for traffic to proceed and he gets rear-ended. No question that there is a, uh, that there's a. You know a pretty line, a pretty definitive line of who was at fault, and that's usually a hundred percent at fault, right. But I've had cases where you've had several vehicles on the roadway. One was speeding, one was, you know, was not aware and looking around and appreciating the circumstances of that person's speed, and so they get in an accident, right, one changes lanes in front of the other and you say, ok, well, that person came right in front of me and you rear ended him and you were speeding, so you should be the one paying all the damages. No, what happens in that case is and this is based on forensics, this is based on what people saw and what is reasonable. Should that person have looked in his rear view mirror? And if he did, he would have been able to appreciate a person traveling at over the speed limit. But certainly he should have been able to see him traveling. And he said you know, I may not want to cross over and overtake this car right now, because I see a car coming up pretty quickly.
Alessandro Assanti:So usually in that case it involves a comparative liability. So one person could be 40% negligent, the other one could be 60% negligent. And it goes from you know, all the way up the board right, right, and that allows people to recover. So you might have one person who said, yes, I was speeding and he might have suffered a million-dollar injury. Yes, I was speeding and he might have suffered a million dollar injury, but he certainly can recover for his claim if he'd like, because he was not completely at fault. So what they do is they say well, you were you. You have a million dollar injury and you were, you know, 60% at fault. That means that you can still recover $400,000 for your injury, you know, and that's just a. That's a simple recipe and it gets much more complicated. And the other party may, you know, be less at fault but have a smaller injury. But guess what? He could still recover for, you know, 60% of his claimed loss. So that's the percent. That's a comparative negligence statute in California.
Charlie McDermott:So then, to kind of take it to an extreme, what would it mean if, say, that a person who is, I guess, classified at 99% at fault, they can still recover damages?
Alessandro Assanti:They could. Technically that they could, yeah, technically they could. They can sue for damages and claim that they were 99 at fault. And you know, what's interesting is a lot of times, you know, in the litigation arena is you get a person that is 99% at fault. You might as well just say it's 100% at fault and he has a horrible injury, right, but we argue as attorneys that he shouldn't be held completely at fault. But it appears to the naked eye that he should.
Alessandro Assanti:But if we make an argument that he was 99% at fault, but not certainly all at fault, there may be so much injuries that completely exceeds any type of insurance policy, no matter how you'd slice it or dice it, that it will probably render a recovery on behalf of that person that was actually at fault.
Alessandro Assanti:You know, and it's happened before is you know, we've had lawsuits where it's horrible, horrible injuries and a horrible outcome and you feel sorry for this person. And we find insurance to try and recover. So at least we can have this person, you know, have the best opportunity of making a life for him or herself in the future, and we look for that insurance and sometimes we're able to, you know, to force it out of an insurance carrier, you know, or somebody that has some liability, even if it's 1%. But generally speaking, when you have a 99% liability you know it's really hard to convince somebody that there's that one percent liability and you know you should recover heartstrings, that it pulls and the likability of the witness or the injury party. Chances are you can get a jury to say you know, in this kind of circumstance we need to give them all we can and so it does promote settlement. It does. It does promote settlement.
Charlie McDermott:Interesting. Yeah, yeah, I could see that. Okay, so let's get into how fault is determined in personal injury cases. So how do courts and insurance companies determine who is at fault in one of these personal injury cases?
Alessandro Assanti:Certainly. Yeah, you know, when you talk about the court system, we'll talk about the court system first and we'll talk about the insurance industry and how they calculate risk and fault second. So the court is. When you're getting to where a court is going to determine liability, you're pretty close to having done a lot of litigation in the past. Right, so you would have taken depositions, you would have dispatched forensic engineers to, you know, measure the scene, measure skid marks, go back and look at the police report and go to the scene and and do all those and make sure that things are adequately documented in the police report. Because a lot of times, you know, police are amazing. They get out to a scene, they have to deal with people, they have to deal with all kinds of other things and they are to produce a police report that is fairly accurate. But sometimes it's completely accurate, but most times it's not because of the stress of the situation. Everything moving, you know cars and you know whatever it is.
Alessandro Assanti:Here in California they call it MATE and they're a group of engineers that go out and they, you know, take measurements and do digital measurements, which is with LiDAR cameras, and they are able to pretty much reconstruct the accident and how it happened, shortly after that accident happened, and they then reduce all that to a police report. So it gives everybody the ability to really get a good look at what happened. Sometimes you don't have that and then we have to dispatch engineers of our own, which is months or weeks or days after the accident. After we're retained, we get an expert out to take a look and see if there's still skid marks on the ground or any evidence that has been left there. You know that obviously starts to dissipate as soon as it's over, and they collect their data. And so then you know, during the course of litigation they collect their data. And so then you know, during the course of litigation we, you know, use that, we put it together, we take depositions of their experts and we go through, and so by the time you get to a court to determine that process of what's going on, that's usually left up to the province of a jury.
Alessandro Assanti:Unless people will waive a jury trial, jury trial, but more than likely on an injury case, none of us ever do, because we want a jury of our peers to decide. You know how these cases are decided, so it's left up to a jury and sometimes you know, the juries get it right and sometimes they don't. You know I've had cases in the past where you know we have lost and it was because they didn't. They, the jury, purely didn't like my client or didn't like how he was riding his motorcycle. You know, before and you know, and then after the case is over, I had the defense attorney come up to me and says, man, I wish you would have just, you know, I wish we would have talked before. But I understood your case, you know, and it's sad that this happened.
Alessandro Assanti:So my, my clear line of advice to people listening is that if you're going to go to trial and risk a jury who knows you for maybe a week or two weeks at the most and never met you and is going to get a small view of your, of this accident, do everything you can to try and resolve it. And but certainly you know we have to do our homework to make sure that you know if we go we're ready. So when you courts decide it's, it's usually a very risky prospect because you don't know what they're going to do. You know, you have a clear thought that they could do something, but you know there's just no way of saying I can predict what they'll do, unless it's a pretty clear case, or you have a favorable witness, or the injuries are really, you know, horrible and you know, and the jury feels some somewhat of an emotional attachment, which they're not supposed to do but you're.
Alessandro Assanti:You can never. So sometimes we have mediations before the trial starts and the judge you know will appoint somebody that's either a retired judge or a judge pro tem to have the parties come together, talk about their case and try to see if they can resolve it, and so that is a very good thing to do, and during the course of litigation we go to mediation and we have a retired judge look at the case and that is always a learning process, even if you don't settle it, but most times they will settle. So those are the court systems and how they do it. Now, going to the other side of the fence and looking at the insurance and how they look at these things. There they have massive databases on everything you know of having to do with prior cases with the same type of injury or similar injuries, prior cases with the same type of liability or similar. You know scenarios and liability.
Alessandro Assanti:They have data on attorneys like me and everybody else, and how often do these guys or girls go to court, are they prepared to go to court? Do they have a track record of going to trial, and so those are all things that insurance carriers compile to be able to come at a value of the case. And I know their computer systems and their ways of calculating the risk of liability, calculating the risk of them paying over a policy limit and calculating the value of cases are all done by computer and this was a system that was been online for years. It was called Colossus and it's improved dramatically. But the more data they get, the more accurate their valuations are.
Alessandro Assanti:But they certainly look at every single aspect of the case and even the courthouse, the jury pool, everything is looked at. So insurance companies, when they offer something, they are pretty well versed on pretty much all the necessary elements to value a case. But they look at attorneys they really do and they look at us and say, okay, does this person have the ability to go to court? Have they gone to court? What were their results? All those things are looked at to go to court. Have they gone to court? What were their results?
Charlie McDermott:All those things are looked at Wow. So, with all your experience over the years, any case come to mind. Or can you give an example of a case where someone was found partially at fault but still recovered compensation?
Alessandro Assanti:Yes, yes, several come, but I have one that just came to mind. This happened several years ago and there was a couple who was driving their vehicle up north on grapevine and they were proceeding on the freeway and they rear ended a semi truck, tote trailer. Okay, and it's one of those things that you see when they go to the docks in Long Beach or wherever there's a dock, and they put a container on a, on a like a flatbed that loads a container and it was a small one, but as they're towing them, it came loose and sat in the middle of the roadway right, and it was dark, but there was ambient lighting there and my client's proceeding up the roadway and just at the last second he sees it and tries to make a turning maneuver, but it doesn't happen in time that they had an impact, a significant one, and the person's wife suffered a very traumatic brain injury. Right, they didn't think she was going to make it significant brain damage. Her result was that she was going to have permanent brain damage, she was going to have significant disabilities and they claimed, as you can see is well, you rear-ended the trailer. You should have seen it. It was out there in the open, it had reflectors on it, right, and so you see, okay, well, yeah, there's there's an issue with regards to was this operator of the vehicle that my client was in?
Alessandro Assanti:Well, both of them were clients did he? Was he attentive? What was he doing, you know? And so there was some partial liability. However, you can see it right, right, and you don't know whether it's, you know, is he 5%, is he 50? Is he even more percent at fault? Our argument was is that, you know, and this is by hiring experts, as they call these, um, the experts, they're, they're forensic experts, but they're, um, they have to do with human factors okay and human factors is is what does a person do, um, when they are um, faced with circumstances, what they look at?
Alessandro Assanti:And so human factors are always hand in hand with forensic accident reconstructionists, right. And so what they determined in the case that we had is that, when you're proceeding, what do we look for and what does the human? You know what you're conditioned to look for on a roadway. Well, you look for rear view lights, right, that are activated. And so what we were able to show the jury is that, yes, there were reflectors on the vehicle. Certainly, it became detached from the tractor itself and it had no electricity. So there were no hazard lights, there were no anything of this nature, and, yes, there was ambient lighting.
Alessandro Assanti:But, you know, as a human factor standpoint, we look for rear view lights to give us indication of you know, when you know, give us some indication of you know, when you know, from the point that we perceive it and from the point where we react on, it's approximately 1.5 seconds.
Alessandro Assanti:And so what we were able to do is determine that, basically, we would the operator of the vehicle would have only been able to see a reflector and discern it from anything else in the roadway, that it was something there that was stationary Less than 1.5 seconds. He couldn't have reacted ata speed that he was getting, you know, 60, 70 feet per second. So, based on that, we were able to show that the predominant liability lay with the operator of the tractor, trailer and the company, and so we were able to recover. But there certainly was an offset, and the jury did make a finding that the client was 20% at fault, but still she had a multimillion-dollar injury, and so she was able to recover a multi-million dollar injury, and so she was able to recover. We were able to get compensation for her and her husband that would, you know, pretty much take care of this person and, you know, have her sustain her life and the best way possible following a horrible incident. Wow, yeah, yeah. So Wow, wow.
Charlie McDermott:Yeah, yeah, so yeah, it's fascinating. I had no idea that's how this all played out. I guess I just assumed that it was a. You had someone who was in the right and someone who was in the wrong, and that was that. That is not the case, not here in.
Alessandro Assanti:California. That's why I say it. It breeds litigation, but it certainly gives people opportunities to recover when they rightfully should, because there's never just one side of the story, as they say.
Charlie McDermott:So how does comparative negligence apply in different types of personal injury cases? So you've got your car accidents and your slip and fall cases and your pedestrian accidents. How does, how does all that come together? What have you seen?
Alessandro Assanti:It's all done by the same mechanism as we spoke about. Right, it's just a, it's just a different type of scenario, but you know, you're easily able to to see that. You know there's some statutes involving cars. Well, the car has the greater potential to do harm, so the the operator of the car has a bigger or higher standard of safety to meet, or a bigger burden of safety. That's on his hands, right, and so juries are let know that, and these are all determined when you get to trial by what they call as jury instructions, right, and there's a long litany of negligence and how it applies and they talk about. And this is to be able to educate the jury on how to rule and certain points that we will accentuate at trial, about comparative negligence and how that applies and who has the higher standard of care. You know so.
Alessandro Assanti:So, whether you're talking about a, a pedestrian accident, an auto accident, it's pretty much all the same. The only thing that I'd say is different is and it's more expert driven is, and it's, it's, it's a, it's what they call a, a medical malpractice case. Now here's an interesting little wrinkle is, there are sometimes people that go into the hospital that have suffered a horrible injury and they go into the emergency room and the doctor commits negligence, okay, and he harms this person, and so the person has a difficult result on a surgery that should have been normally fixed. So how do we compare those two things? Well, there is a special rule in the jury instructions and in the state of California. These are all laws, these are all what the California judicial has said, these are what our standard of negligence and comparative negligence are.
Alessandro Assanti:So, when it comes to an accident you've had an auto accident, or if you had a traumatic accident, you go into the hospital and the doctor commits simple negligence. Guess who is responsible for that simple negligence that the doctor committed? Certainly, the doctor is, but also the original tortfeasor is also responsible for that negligence committed by the doctor, and they say that these are foreseeable circumstances. In the emergency setting, however, where that would sever, as if the doctor or the medical practitioner, whatever it may be, is grossly negligent or something more than just simple negligence, then you have a portionment of who's responsible, okay, so yeah, oh, go ahead.
Alessandro Assanti:So, yeah, we always have. In California there are several, but fours or several. Wait a second, here's a caveat on this one. But yeah, that's one of the main ones, because usually accident victims go to the hospital and sometimes they, they're, they're treated and it doesn't come out with a good result.
Charlie McDermott:So are there ever any cases where it's like difficult to determine the percentage of the fault, like? How do the courts handle that?
Alessandro Assanti:It is, and those are the cases that usually are left up to the province of the jury, right, unless you can settle, unless people you know and I always say you know to my clients when we're talking about comparative negligence and I'm like, well, let's, let's, let's consider this really, mind if you were more negligent than the other party, as long as the number was sufficient to compensate you right, or to represent some form of compensation versus the risk that we have to go to trial, versus the cost that we have to go to trial. Let's not focus on pure fault or who's more at fault. Let's focus on the number and I always tell my clients that. But there are times when people just can't get through the fact and people may have a different look at the cases, right, insurance carriers and defendants and plaintiffs may all have a different take on who's more at fault. You know, I just recently had an accident. It wasn't a very big one, but a woman was coming out of a Starbucks from a private drive and clearly the sign says do not make a left turn and go across traffic. Because what she tried to do is go across traffic split, go over the double yellow line and then turn up the roadway to the left and the sign clearly says nope, you can't do it. But their argument was is my client was speeding, right? So they were pretty adamant is because I think the insurance carrier wanted to settle, but the client was just adamant that she wasn't going to settle. You know theirs. And obviously my client suffered some injuries, not nothing severe, but they said he was speeding. And so we finally had to get up close to the, to the trial, where people start to get to start to figure out. Okay, I really got to get serious about evaluating this, or else we are going to be in front of a jury and we don't know what we're going to get.
Alessandro Assanti:But usually when people do some bad things, like break the law, break a traffic law, and then somebody's speeding, it doesn't go well for them. You know, unless the person was, you know, doing an extreme speed, like maybe doing double the speed limit or something like this. But if you're simply going, you know two or three miles an hour over the speed limit, you know they're not going to, they're not going to make a adverse finding against the person who's actually following the rules of the law or the road, I should say actually following the rules of the law or the road. I should say the rules of the road. So you know, when people can't decide, usually a jury will decide for them at the ultimate. You know, and I think that's ultimately where it will end up, unless people sober up and say okay, let's take a good look at this, let's figure out. Let's not worry about who is negligent on what percentage. Let's just look at a number. What's the number we could all live with yeah that's what has a good angle.
Charlie McDermott:Yeah, so, alessandro, what's your advice to someone who believes they may be partially a fault in an accident?
Alessandro Assanti:my advice and it is always my advice is that when the facts are fresh in their mind, consult an attorney always, because you know people may have an idea of what they have and they may have an idea that is rosier than what they have, or it could be exactly the opposite. They may not think they have a case and they have some injuries and and they go to an attorney and it enlightens them. So my advice is always seek counsel's advice If you have any deliberations going on in your mind as to whether or not you should do something or not. You know that's my advice.
Charlie McDermott:Simple, very good advice, very, very good advice. And for those listening and saying, yes, I need that advice, how can they find you? Get in touch.
Alessandro Assanti:Yes, they can find me at my website, it's AssantiLawcom, or they can always reach me at the phone number here, and I know we have one up on the board, charlie. And do you, do you want to give him that one, or should I give him my, my local one, because I don't have that one memorized yet Give me your local one.
Alessandro Assanti:Yeah, yeah, nine, four, nine, five, four, zero, zero, four, three. Nine is a local number here and it's you're welcome to call. Or 8, 7, 7, bike, 9, 1, 1. That's this motorcycle side of my business. They're always welcome to call that number too.
Charlie McDermott:Oh, terrific. Well, I know you have things to get back to there. Really appreciate you once again being on the show, alessandro, and we will see you real soon Enjoy.
Alessandro Assanti:Yes, you as well, and thank you. As always, it's a pleasure to work with you, sir.
Charlie McDermott:Thank you.
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