What happens if you were partly to blame for the accident and
are seriously injured? Does this mean that you can’t recover a
dime from the other party? In the old days, the doctrine of “contributory
negligence” applied to bar you from suing the other
party, even if you were only one percent at fault! California now
uses the “comparative negligence” rule, in which your percent
of fault is compared to the other party’s percent of fault, and
your damages are decreased accordingly.

California uses what is called the “pure” form of the comparative
fault doctrine, which allows you to recover your percent of
the damages regardless of the percentage of your fault. So if you
were, say, 50 percent at fault for the accident, you can recover
only 50 percent of the cost of your injuries, lost wages, pain and
suffering, and other injuries and damages from the other party.
If you were one-third at fault, then you would be entitled to
receive only two-thirds of your damages and property damage
from the other party. On the other hand, you would be liable
for one-third of the other party’s personal injuries and property
damage.

Let’s use as an example a lawsuit arising from the collision
between a motor vehicle and a bicycle where the vehicle driver
was primarily to blame (“at fault”) for the incident. The driver
is nevertheless entitled to bring up any fault on the part of the
bicyclist to reduce or nullify the bicyclist’s right to recover completely.
For instance, say that the bicyclist had been riding on
the wrong side of the road and the driver, entering the road via
a right turn from an intersection or driveway, did not see the
bicyclist approaching; the driver may assert the bicyclist’s act
of riding on the wrong side of the road as a complete or partial
bar to the bicyclist’s recovery.

The doctrine of comparative fault reduces the amount of
money (“damages”) the injured bicyclist is entitled to recover.
So if a jury determined that the bicyclist’s riding the wrong
way was 50 percent at fault for the injuries, then the bicyclist’s
damages are cut in half. In fact, where the bicyclist was riding
on the wrong side of the road, a jury may well determine that
he was the prime or sole cause of the accident, in which case
the motorist might be relieved from all liability for the accident.
However, a driver making a right turn onto a road from
an intersection or driveway generally has a duty to look both
ways before proceeding onto the road to make sure there are no
pedestrians or others who might cross his path. Other factors
that could be used to reduce or defeat the bicyclist’s recovery
are: (1) the bicyclist’s failure to wear a helmet; (2) failure to
have lights on the front and rear of the bicycle; or (3) not wearing
a reflective vest while bike riding at night.

A critical part of a successful personal injury case is proving the
fault of the other person. Some cases of responsibility (“liability”)
for an accident are pretty clear. For instance, if you have
been rear-ended in a traffic collision, 99.99 percent of the time
it is the fault of the driver who hit you.

In many cases, it is necessary to bring in an expert witness
to establish that the other party was at fault. In a traffic
accident case, for example, an “accident reconstructionist”
may be necessary to prove the fault of the other driver. In a
medical malpractice case, a doctor familiar with the procedure
and standard of care in the area is vital to proving your case.
In a defective product case, engineers or metallurgists may
be among the experts called to testify that the product was
improperly designed or manufactured, making the product
dangerous.

To win in a personal injury case, you must prove that the
other person is responsible for your injuries. The standard
of care that is used in civil cases such as personal injury is
a “preponderance of the evidence”—you must prove that it
is more likely than not that the other party was at fault and
caused your injuries. This standard of proof is quite a bit
lower than that required in criminal cases, where the District
Attorney must prove the guilt of the accused beyond a reasonable
doubt.