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I. Proving liability in an auto accident

California is a "fault state" when it comes to car accidents, meaning a plaintiff (the injured party) is required to prove fault and liability before he or she can receive compensation.  There are no minimum requirements in California, in terms of the seriousness of the injury or the likely compensation recovery, as there are in several other states.  To prove liability, a Plaintiff must show that the driver at fault was 'negligent', which caused the plaintiff to suffer damage (physical injury or financial loss).  The four elements that a Plaintiff must prove are: - 

1.  A legal duty was owed - drivers owe a legal duty to all foreseeable victims, being other drivers, passengers, pedestrians and cyclists, to operate their vehicle with a reasonable standard of care.

2. The duty was breached - the duty is breached where a driver fails to operate a car to the standard of a reasonable prudent driver.  A reasonable prudent driver is deemed to drive at an appropriate speed, concentrate on the road and obey the laws of the highway.  

3. Causation – means showing that the breach of duty has led to injuries.  The driver's action or inaction has caused injury to someone who was owed a duty of care (a foreseeable victim).  In other words, had the driver been operating the vehicle in a reasonably prudent manner, the accident would not have occurred.

4. Damage - the driver's actions must have caused injury (physical harm or economic loss).

II. Who is responsible for the accident?

The driver at fault is generally responsible for the damage caused by the accident.  Assuming the driver is insured, which is a legal requirement of using a vehicle on the road, the at-fault driver’s insurance company will be responsible for paying out compensation for all injuries and loss.

In certain circumstances insurance companies might attempt to withdraw or limit insurance coverage if there is evidence of a breach of the policy by the driver at fault.  For example, some insurance policies exclude coverage if the driver has an out-of-date driver’s license.  Insurers may also attempt to exclude or limit coverage when the driver at fault tests over the limit for alcohol.  However, this would usually concern the driver at fault's insurance coverage and possibly his passengers, if they knew the driver was under the influence.  It is unlikely this would affect insurance coverage in a claim by an injured third party.

If it transpires the driver did not have a current insurance policy (which is illegal) or insurance coverage is successfully denied or withdrawn by an insurance company, then your claim will be against your own insurer pursuant to your uninsured motorist coverage or against the individual who personally caused the accident.  Before investing time, energy and money seeking compensation directly from the driver at fault, it is advisable to explore whether the individual has the means to pay any compensation.  You could spend a lot of time and money obtaining a court judgment for compensation, only to find the defendant has no money or assets from which you can recover compensation.

III. What compensation may you receive?

The law holds the at-fault driver responsible for two types of damage caused, ‘general’ damages and ‘special’ damages.  General damage assesses the ‘pain, suffering and loss amenity’ caused by the accident.  There is substantial case-law in California, and the wider U.S., that has quantified and created guidelines as to the amount of compensation a victim can receive from anything ranging from minor whiplash or a sprained wrist, to more serious injuries including brain damage or the loss of a limb. 

Special damages assess the out-of-pocket expenses that are reasonably incurred by the victim as a result of the accident.  Common special damages include: -

  • Medical treatment (surgery, rehabilitation treatment, medication etc.)
  • Care and assistance while you recover (this can be claimed for both professional care and assistance provided by friends and family)
  • Lost earnings (Past and future earnings if you are unable to work as a result of the accident)
  • Repair or replacements costs for damage sustained to your vehicle or personal items

IV. Shared fault

If you are deemed to share some of the blame for causing the accident this will affect the amount of compensation you can recover.  California is a ‘pure comparative fault State’, which means the amount of compensation an injured person can recover following an accident will be reduced in proportion to their percentage of fault.  For example, if you were 20% at fault for the accident, and damages were agreed or awarded at $50,000, you would receive $40,000 in compensation (with the agreed or awarded amount being reduced by $10,000 to reflect your proportion of blame).

V. Time limits for bringing a lawsuit

Any lawsuit seeking damages (compensation) from an accident must be filed within a certain time limit from the date of the accident or the injured person's legal claim will be 'time barred' and their right to sue will be lost.  In California, pursuant to Cal. Code of Civ. Proc. Sec. 335.1, the statute of limitations for filing a personal injury claim is generally two years.  

However, where the suit is against a federal, state or local government entity a 'notice of claim' must be filed within six months of the accident.  It is therefore crucial that you assess the correct party to sue and file a lawsuit within the appropriate time-frame.  The statute of limitations is strictly applied and those who fail to file a lawsuit within the necessary period will lose their right to claim, regardless of how compelling the evidence is against the at-fault driver.

In my next blog I will focus on what you should do if you are ever involved in an auto accident - 'Auto Accidents - Part III - Steps to take after an accident?'

Content prepared by Edmond McGill and Richard Parry.


This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.