Can You Sue If Your Loved One Was Partly at Fault for a TBI? California's Comparative Negligence Rule Explained
California TBI Comparative Negligence Explained (1)
October 20th, 2026
Traumatic Brain Injury

Can You Sue If Your Loved One Was Partly at Fault for a TBI? California’s Comparative Negligence Rule Explained

Michael Hackard of Hackard Law
by Michael Hackard
Publication Date October 20, 2026 in Traumatic Brain Injury

Understanding Your Rights After a Traumatic Brain Injury

I am Michael Hackard, founder of Hackard Law. Over five decades of practice, I have fought for injured people and their families across Sacramento, the San Francisco Bay Area, and Los Angeles. I have written four published books on protecting families’ legal rights, and our firm has produced more than 1,000 educational videos that have reached over seven million viewers. One of the most common questions I hear from families dealing with a traumatic brain injury is a deeply personal one: “Can we still pursue a lawsuit if my loved one was partly responsible for what happened?” The fear behind that question is real. Families worry that any shared fault will shut the courthouse door entirely. In California, that is not how the law works  –  and understanding why can change everything for a family trying to recover.
Hackard Law provides contingency fee representation for qualified TBI cases, meaning there are no upfront costs to you. To speak with our team today, call (916) 313-3030.

Quick Summary

California’s pure comparative negligence rule allows TBI victims to recover compensation even when they share some responsibility for their injury. The amount recovered is reduced in proportion to their percentage of fault, but it is not eliminated.
  • California follows the pure comparative negligence standard  –  not contributory negligence
  • A victim found 30% at fault on a $1 million award would still recover $700,000
  • Fault percentages are determined through evidence, witness accounts, and legal argument
  • Even a victim found 99% at fault retains the right to seek the remaining 1% in damages
  • Consulting a TBI attorney early is critical to building the strongest possible case

What Pure Comparative Negligence Actually Means

Many states use contributory negligence rules that bar any recovery if the injured person contributed even slightly to the accident. California rejected that approach. Under California’s pure comparative negligence standard, a court or jury assigns each party a percentage of fault, and the plaintiff’s recovery is reduced by their share.
This is a meaningful distinction. It means that a family does not have to prove their loved one was entirely blameless to pursue justice. The law recognizes that real accidents are rarely one-sided, and it distributes responsibility accordingly.
For families navigating the aftermath of a serious brain injury, this rule provides a realistic path forward. You can learn more about how TBI claims work in California and what legal options are available.

How Fault Percentages Affect Your Recovery

The math behind comparative negligence is straightforward, but the process of arriving at those numbers is anything but. Suppose a jury determines that the total damages in a TBI case are $1 million. If your loved one is found 30% at fault, their recovery is reduced by $300,000  –  leaving a net award of $700,000.
Now let’s take a more tough case. Your loved one is deemed 60% at fault. They would still get $400,000 on the same $1 million in damages. That’s a lot of money that may go toward years of medical care, rehabilitation and assistance – money a family may never see if they believe partial fault implies no recovery at all.
Understanding what TBI settlements in California typically look like can help families set realistic expectations before entering negotiations or trial.
Case Pattern: A family contacted Hackard Law after a vehicle accident left their father with a severe traumatic brain injury. The defense argued the father had contributed to the crash by failing to yield. Rather than abandoning the claim, the legal team gathered traffic analysis and witness testimony that reduced the attributed fault percentage significantly  –  resulting in a recovery that covered long-term care costs the family feared they would never see.

Why Determining Fault Is More Complex Than It Looks

Fault percentages do not emerge from thin air. They are the product of contested evidence, experienced attorney analysis, accident reconstruction, medical records, and witness testimony. Insurance companies and defense attorneys work hard to push the plaintiff’s fault percentage as high as possible  –  because every point of fault they assign to your loved one reduces what they owe.
This is why having an attorney in your corner matters from the very beginning. An attorney who understands TBI litigation knows how to challenge inflated fault assignments, gather the right evidence, and present a clear picture of what actually happened. Many TBI survivors also face an additional complication: they may not fully understand the extent of their own injuries. If you are concerned about whether your loved one recognizes the severity of what they experienced, this resource on why some brain injury survivors don’t realize they’re injured explains the phenomenon of anosognosia and why early legal and medical intervention matters.
Case Pattern: In one pattern Hackard Law has encountered, a TBI survivor initially declined legal help because she believed her partial fault in a pedestrian accident made a claim futile. By the time her family reached out, critical evidence had begun to disappear. Early legal involvement  –  even before fault is sorted out  –  preserves options that delay can destroy.

The Human Stakes Behind the Legal Framework

For decades, I have stood with families at some of the most painful crossroads of their lives. A traumatic brain injury does not just change a person  –  it changes an entire family’s trajectory. The financial toll grows steadily: hospital bills, rehabilitation, lost income, in-home care, adaptive equipment. The fracture in a family’s sense of security often runs too deep for any judgment to fully mend.
Discovery, medical analysis, and the pursuit of accountability  –  these are not just legal strategies, but safeguards for families who deserve answers and resources after a catastrophic injury. California’s comparative negligence law exists precisely because the legal system recognized that partial fault should not mean total abandonment. A steadfast commitment to truth restores what a moment of tragedy tried to steal.
Our Sacramento TBI legal team is ready to evaluate your case and help your family understand every available option.

Key Definitions

  • Pure comparative negligence: A legal rule allowing an injured party to recover damages even if they were partially at fault, with recovery reduced proportionally to their share of fault.
  • Contributory negligence: An older rule, not used in California, that bars any recovery if the plaintiff contributed even minimally to the accident.
  • Fault percentage: The share of responsibility assigned to each party in a personal injury case, determined by a jury or agreed upon in settlement.
  • Damages: The monetary compensation awarded for losses including medical expenses, lost income, pain and suffering, and future care needs.
  • Traumatic brain injury (TBI): A disruption in normal brain function caused by a blow, jolt, or penetrating injury to the head, ranging from mild concussion to severe cognitive impairment.
  • Settlement: A negotiated resolution between parties that avoids trial, often reflecting the comparative fault analysis both sides expect a jury to reach.
  • Accident reconstruction: A forensic process used to determine how an accident occurred, often used to establish or contest fault percentages.
  • Anosognosia: A neurological condition in which a brain injury survivor lacks awareness of their own deficits, complicating both recovery and legal participation.

What to Do Next

  • Get copies of all accident reports, medical records, and insurance correspondence as soon as possible.
  • Look for any surveillance footage, photographs, or witness contact information related to the incident before it is lost.
  • Try to avoid giving recorded statements to insurance adjusters before speaking with an attorney.
  • Write down everything you remember about the circumstances of the injury while details are still fresh.
  • Look for a TBI attorney who handles cases on contingency so that cost is not a barrier to pursuing your claim.
  • Get a thorough neurological evaluation for your loved one  –  even injuries that seem minor at first can carry serious long-term effects.
  • Try to avoid assuming that partial fault eliminates your right to compensation  –  California law says otherwise.
  • Reach out to Hackard Law through our contact page to schedule a free consultation.
  • Call Hackard Law at (916) 313-3030 to speak directly with our team about your loved one’s situation.

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Frequently Asked Questions

Yes. California’s pure comparative negligence rule places no cap on the plaintiff’s fault percentage. Even a person found 90% at fault may recover 10% of the total damages awarded. Many states cut off recovery at 50% or 51%, but California does not.

Fault is determined through evidence presented at trial or negotiated during settlement discussions. Accident reconstruction reports, medical records, witness testimony, and traffic or surveillance data all play a role. A jury assigns the final percentages if the case goes to trial.

Not necessarily. Many TBI cases resolve through settlement before trial. Knowing that California’s comparative fault rules apply often motivates insurance companies to negotiate, because they understand a jury will assign fault proportionally rather than all-or-nothing.

As early as possible. Evidence disappears quickly, and California’s statute of limitations for personal injury claims is generally two years from the date of injury. Early legal involvement protects your options and preserves critical evidence.

Insurance companies routinely inflate fault percentages to minimize payouts. An attorney can challenge those assessments with independent evidence and experienced attorney analysis. A low initial offer is rarely the final word when legal representation is involved.

About the Author

Michael-Hackard-300x300Michael Hackard is the founder of Hackard Law, a California trust and estate litigation firm with more than five decades of experience protecting the inheritance rights of families across Sacramento, the San Francisco Bay Area, and Los Angeles. He is the author of six published books and has produced more than 1,000 educational videos with over seven million views.

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