When the attacker is mostly at faultThe owner can still owe its share.

This page was checked against Civil Code section 1431.2, the 2026 edition of California's civil jury instructions and the cases it cites on November 11, 2026. It explains how fault is divided when a property owner was careless and another person committed the attack. Our negligent security page explains these claims, and our guide to how to prove a negligent security case covers liability itself.

The attacker's share

In California, a jury can assign part of the fault to the attacker. Each defendant pays only its own share of noneconomic damages, such as pain and emotional distress (Civil Code section 1431.2), and a Court of Appeal has applied that rule to a bar whose patron was assaulted by a third person (Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1). Economic damages, such as medical bills and lost earnings, are not divided this way.

In plain terms, the jury gives each responsible person a percentage, and under CACI No. 406 "[t]he percentages must total 100 percent." For pain and other noneconomic losses, the owner pays only its own percentage. For economic losses, the owner can owe the full amount, less any share the jury assigns to the injured person. Whether the owner's insurance pays is covered in our guide to insurance and who pays.

Economic and noneconomic damages

Civil Code section 1431.2 sorts damages into two groups. Economic damages are "objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities." Noneconomic damages are "subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation." Only the noneconomic group is divided by percentage. For the rest, Civil Code section 1431 keeps the rule that an obligation of several persons "is presumed to be joint, and not several, except as provided in Section 1431.2." Joint means each responsible defendant can be required to pay the whole amount.

The Weidenfeller numbers

Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1 shows the rule with real figures. A man was the victim of an armed assault in a San Diego bar's parking lot and sued the bar for failing to provide adequate lighting and a security presence. The jury found $122,500 in economic damages and $250,000 in noneconomic damages. It assigned 75 percent of the fault to the assailant, 20 percent to the bar and 5 percent to the injured man. The Court of Appeal affirmed a judgment against the bar for $166,375, plus interest and costs. The court found it "inconceivable the voters intended" that the bar's 20 percent share "would become disproportionate increasing to 95 percent solely because the only other responsible tortfeasor acted intentionally."

These figures come from one 1991 case and show how the rule works. They do not predict the percentages or the amounts in any other case.

Medical and earnings proof

Because economic damages are not divided by percentage, proof of them matters more when the attacker is mostly at fault. In Weidenfeller (1991), the bar paid 95 percent of the economic damages even though the jury put 75 percent of the fault on the assailant. Economic damages must be "objectively verifiable" under Civil Code section 1431.2, so they rest on records: medical bills, a doctor's plan for future care, pay stubs, tax returns and employer letters about time missed. A person attacked on someone else's property can keep every bill, receipt and record of missed work from the start. Our negligent security evidence checklist lists what to keep.

The B.B. decision

An attacker cannot use a property owner's carelessness to reduce the attacker's own share. In B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 29, the California Supreme Court held that section 1431.2(a) "does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors ... contributed to the injuries in question." An intentional tortfeasor is a person who caused harm on purpose, such as a person who commits an assault or a battery. Under B.B., the attacker stays liable for the full noneconomic damages even when a careless owner shares responsibility. The decision left a related question open.

The question B.B. left open

B.B.'s footnote 4 reads: "We express no opinion on whether negligent tortfeasors may, under section 1431.2, subdivision (a), obtain a reduction in their liability for noneconomic damages based on the extent to which an intentional tortfeasor contributed to the injured party's injuries." That is the question Weidenfeller answered in 1991, when the Court of Appeal let a negligent bar pay only its 20 percent share. The California Supreme Court left it open in 2020. Until that Court decides it, the rule applied in Weidenfeller is the one a negligent property owner will rely on. In a case with a large noneconomic loss, a lawyer may raise the open question so it is preserved for appeal.

Attackers never sued or caught

A jury can assign fault to the attacker even if the attacker is never sued or never caught. In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603, the California Supreme Court held that a defendant's liability for noneconomic damages "cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of 'defendant[s]' present in the lawsuit." The directions for CACI No. 406, the jury instruction on dividing fault, say nonparties include "nonjoined alleged tortfeasors," meaning people alleged to be responsible who are not in the case. The owner carries the burden of proving the nonparty's fault. "[T]here must be substantial evidence that a nonparty is at fault" (Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763, 785, as quoted in CACI No. 406).

Suing the attacker

A claim against the attacker is a separate claim for assault or battery, and it can be brought in the same lawsuit as the claim against the owner. Code of Civil Procedure section 335.1 allows two years for "[a]n action for assault, battery, or injury to" a person. If the attacker is convicted of a felony, section 340.3(a) allows an action against that person "within one year after judgment is pronounced," when that ends later than the usual period. Suing the attacker does not change how the owner's share is set, because the jury assigns the attacker a percentage either way (CACI No. 406). What a suit adds is a judgment for the attacker's own liability, which under B.B. is not reduced by anyone else's negligence.

Collecting from the attacker

A judgment against an attacker is worth only what can be collected. The attacker's own liability insurance usually does not pay for a deliberate attack: "An insurer is not liable for a loss caused by the wilful act of the insured" (Insurance Code section 533). A criminal court can order restitution, and restitution collected "shall be credited to any other judgments for the same losses obtained against the defendant" (Penal Code section 1202.4(j)). A felony conviction can be used in the civil case to prove what the attacker did (Evidence Code section 1300). Our guide to the criminal case, CalVCB and your civil claim covers restitution and victim compensation.

Notice and the owner's share

How a jury divides fault depends on what each party did, so notice evidence matters a second time. CACI No. 406 tells jurors to "decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form." An owner that received written reports of threats or violence by a specific person, and did nothing, gives the jury more to weigh than an owner that never heard of the danger. In Madhani v. Cooper (2003) 106 Cal.App.4th 412, the Court of Appeal saw "a close connection between the landlords' failure to react to at least six reports of [the neighbor's] violent and threatening behavior and the harm" to the tenant. No rule sets the owner's percentage, and no lawyer can promise one. The jury decides it from the evidence.

Vicarious liability exception

The percentage split of Proposition 51, the voter initiative that enacted Civil Code section 1431.2, does not help every defendant. A Court of Appeal held that when a defendant is liable only through "a derivative nondelegable duty arising from his status as employer or landlord," among other roles, "his liability is secondary (vicarious) to that of the actor," and the Proposition 51 split does not apply to that defendant (Bayer-Bel v. Litovsky (2008) 159 Cal.App.4th 396, 400, as quoted in CACI No. 406). Vicarious liability is liability for someone else's conduct because of a relationship, such as an employer's liability for an employee. Whether it applies to an owner whose employee or security contractor was at fault is a question a lawyer answers for each case.

Fatal attacks

The same split applies when an attack is fatal. Civil Code section 1431.2 covers any action "for personal injury, property damage, or wrongful death." It lists "loss of society and companionship" as noneconomic damages and "burial costs" as economic damages. So a family's loss of companionship is divided by percentage, and burial costs are not. Our wrongful death page explains who can bring a claim after a death and what the family can recover.

Filing deadlines

Most California injury lawsuits must be filed within two years of the injury (Code of Civil Procedure section 335.1). Some claims have more time and some have less; our negligent security deadlines guide lists each period. The deadline calculator counts the general deadlines from one date, and the dates in any one case should be calculated by a lawyer.

Sources cited

• Civil Code section 1431.2: california.public.law
• Civil Code section 1431: california.public.law
• Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1: CourtListener
• B.B. v. County of Los Angeles (2020) 10 Cal.5th 1: CourtListener
• Judicial Council of California Civil Jury Instructions (CACI), 2026 edition, No. 406, quoting DaFonte v. Up-Right, Inc. (1992), Scott v. C. R. Bard, Inc. (2014) and Bayer-Bel v. Litovsky (2008): courts.ca.gov
• Madhani v. Cooper (2003) 106 Cal.App.4th 412: CourtListener
• Code of Civil Procedure section 335.1: california.public.law
• Code of Civil Procedure section 340.3: california.public.law
• Insurance Code section 533: california.public.law
• Penal Code section 1202.4: california.public.law
• Evidence Code section 1300: california.public.law