Is Comparative Negligence Considered in Setting Restitution?

In civil actions for negligence, defendant has the right to offset damages by the percentage of fault determined by a jury attributable to plaintiff.  For example, if plaintiff trips on a crack in the driveway of defendant, defendant is entitled to a reduction of his damages by the comparative fault of plaintiff, perhaps because plaintiff was not watching where he was walking or because plaintiff was drunk and less careful about where he walked.

Is the same principal applicable in a criminal action for restitution?  At a restitution hearing, may defendant reduce the damages he or she must pay because the victim contributed to the his own injuries in some way?

The restitution order in People v. Melissa Nicole Nicolas put this to the test.

Ms. Nicholas had an “on-again, off-again” relationship with her boyfriend.  She went over to a girlfriend’s apartment and began discussing her boyfriend with her girlfriends.  While she was there, she drank three 24-ounce cans of beer.  She was part way through her fourth can at 7:15 p.m.

At about 7:30 p.m., she decided to go to a bar with her girlfriends.  Beer was expensive at the bar, so the friends agreed to buy two or three cans of beer on the way and drink the beer on the way to the bar.

While driving to the bar, Ms. Nicholas saw her “on-again, off-again” boyfriend on his new motorcycle, which he had purchased to impress his new girlfriend.  The girls saw the boyfriend “fly” by them and Nicholas sped to catch up.

She caught up to her boyfriend at a traffic light and had a brief angry conversation with her boyfriend.  A motorist behind them at the light watched this.

The light turned green and the boyfriend again raced ahead.  Ms. Nicholas also sped off.  The witness behind them lost sight of the two, but after rounding a curve in the road, came upon a lot of dust in the air and the boyfriend laying on the road “quite a way up the road.”  The witness, who was a nurse, determined he had already died.

The witness then walked up to Nichols’ car and saw Ms. Nichols and her friend still sitting in the car with the boyfriend’s detached leg inside the car.  Ms. Nichols’ friend suffered a shattered eye socket and cheek bone, as well as a wrist injury.  She was in the hospital for eight days.

Ms. Nichols’ blood-alcohol level was measured at 0.11%.

The front of Nichols’ car was damaged to the front.  Based on the locations and positions of where the motorcycle and the car came to rest, as well as gouge marks on the road, the CHP determined that Nichols had crossed into opposing traffic and run head-on into her boyfriend on the motorcycle.  It was further determined that at impact Nichols was travelling at 84 miles per hour and the motorcycle at 37 miles per hour.  

Nichols was charged with murder of her boyfriend (Penal Code § 187(a)), gross vehicular manslaughter while intoxicated (Penal Code § 191.5(a), driving under the influence of alcohol and causing injury to her passengers.  The case went to trial and the jury found Nichols guilty of driving under the influence of alcohol causing injury to her passengers.  The jury otherwise was unable to reach a verdict on the other counts.

The judge sentenced her to two years in state prison and to pay restitution to her boyfriend’s mother in the amount of $14,635.33.

Prior the restitution hearing, the defense argued that the amount of restitution should be reduced under the comparative negligence doctrine enunciated in People v. Millard (2009) 175 Cal.App.4th 7, as well as civil jury instructions (CACI) 407 (comparative fault of decedent) and 430 (causation; substantial factor).  The theory was that the boyfriend was speeding, so the recoverable restitution should be reduced by half.  

The prosecutor argued that civil jury instructions were inapplicable in a criminal restitution hearing and that Millard did not apply because surviving family members do not “step into the shoes” of a victim, insofar as they did nothing wrong.  They are separate victims.

The trial court ruled that comparative negligence did not apply to restitution in this case, but had the boyfriend survived, it would have.  

Nichols appealed the ruling to the Third Appellate District, which in People v. Melissa Nicole Nichols (2017 DJDAR 1195), affirmed the trial court.  The appellate court agreed with the prosecution and trial court that Millard did not apply because the mother of the boyfriend here was a separate victim.  She contributed in no way to the accident and was not negligent and thus, she should not be penalized for her son’s negligence, if any.

For more information about issues involving restitution, please click on the following articles:
  1. Restitution – What Things Are Allowed in a Criminal Case?
  2. What Is a Harvey Waiver and How Does It Affect Restitution?
  3. Restitution Order for Defendant to Pay $425,655 in Medical Expenses to Victim of Hit and Run Is Improper Because Defendant Did Not Admit Causation
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