For more than 30 years, California has been a pure comparative fault state when it comes to damages for bodily injury. That is, even a defendant found to be only 1 percent responsible for a plaintiff’s injuries still will be held responsible for a portion of plaintiff’s damages if other defendants, or other parties, or even the plaintiff is found to be 99 percent at fault. This should be simple to calculate. However, California has chosen to increase dramatically the complexity of the task by differing the approach to calculating economic damages and non-economic damages.
The reasoning began simply and fairly, with the passage in 1986 of Proposition 51, a voter-approved initiative to differ the approach to the two kinds of damages (Cal. Civ. Code §§1431-1431.5). This arose conceptually from the following situation. A driver with minimum $15,000/$30,000 automobile policy limits acted negligently and caused serious and permanent injury to a plaintiff. Plaintiff’s attorney sued both the driver and the local city for a design defect relating to an adjacent light pole. The design defect was a factor contributing to the injury, but the contribution was tiny compared to that of the automobile driver. The thinking then and now was to hold the city jointly and severally liable for all of plaintiff’s out of pocket costs, but to hold it only severally liable for the more inchoate and sometimes dramatically larger economic damages such as pain and suffering, humiliation and the like.
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