Until 1975, the defendant in a personal injury case in California could claim the existence of contributory negligence on the part of the plaintiff. Today, the defendant could decide to charge the plaintiff with comparative fault. How do these newer charges differ from the old ones?

What is contributory negligence?

That is a term that might be used by the defendant’s defense team. A defense team that has chosen to focus on a plaintiff’s contributory negligence uses an approach that is knows as affirmative defense.

A defendant that has chosen to use an affirmative defense admits to an allegation, but provides a reason for his or her actions. That reason is meant to function as a justification. If accepted by the jury, the justification can get the defendant’s payment lowered.

What is comparative negligence?

That is a legal ruling that gets used during a determination of the size of the award for the plaintiff. Under that ruling, the actions of both drivers must be considered, during a determination of the size of the award for the plaintiff.

What happens if the evidence shows that the defendant was a bit careless?

The judge studies the degree to which the plaintiff was careless, and uses that figure to calculate what portion of the award money should be removed from the funds that are meant for the plaintiff. Removal of some of the award funds does not alter that fact that the defendant also committed an act of negligence.

In addition to calling for a reduction in the size of the plaintiff’s award, the judge might also hit the defendant with a fine. Maybe the Personal Injury Lawyers in Clovis representing the plaintiff will seek punitive damages.

The defendant would not get hit with punitive damages unless he or she had committed a violation of the law, in the moments leading up to the accident. Still, if the defendant was indeed negligent, then that negligence could become a reason for a reduction in any award that might be granted to the defendant.

Why would a defendant get awarded?

The awarding of money to the defendant would reflect the nature of comparative negligence. It calls for calculation of the extent to which both sides contributed to a given accident. Then the award for the defendant gets reduced in proportion to the degree of the plaintiff’s negligence.

The extent of the defendant’s negligence determines the percentage of the award that goes to the defendant, rather than the plaintiff. That system can be used as long as the plaintiff contributed to even 1% of the factors that caused a given accident. If the plaintiff could not be blamed for more than 1% of the factors, then the plaintiff would get the award.