405 . Comparative Fault of Plaintif f
[ Name of defendant ] claims that [ name of plaintiff ]’ s own negligence
contributed to [his/her/ nonbinary pr onoun ] harm. T o succeed on this
claim, [ name of defendant ] must prove both of the following:
1. That [ name of plaintiff ] was negligent; and
2. That [ name of plaintiff ]’s negligence was a substantial factor in
causing [his/her/ nonbinary pronoun ] harm.
If [ name of defendant ] proves the above, [ name of plaintiff ]’ s damages are
reduced by your determination of the percentage of [ name of plaintiff ]’ s
responsibility . I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction should not be given absent substantial evidence that plaintif f was
negligent. ( Drust v . Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr . 750].)
If there are multiple defendants or alleged nondefendant tortfeasors, also give CACI
No. 406, Apportionment of Responsibility .
Sources and Authority
• “[W]e conclude that: . . . The doctrine of comparative negligence is preferable
to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view
of logic, practical experience, and fundamental justice; . . . .” ( Li v . Y ellow Cab
Co. (1975) 13 Cal.3d 804, 808 [1 19 Cal.Rptr . 858, 532 P .2d 1226].)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability . The doctrine “is a flexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability , or other theories
of responsibility), in order to arrive at an “equitable apportionment or allocation
of loss.’ [Citation.]” ( Pfeifer v . John Crane, Inc. (2013) 220 Cal.App.4th 1270,
1285 [164 Cal.Rptr .3d 112].)
• “Where contributory negligence is asserted as a defense, and where there is
‘some evidence of a substantial character ’ to support a finding that such
negligence occurred, it is prejudicial error to refuse an instruction on this issue,
since defendant is thereby denied a basic theory of his defense.” ( Hasson v . Ford
Motor Co. (1977) 19 Cal.3d 530, 548 [138 Cal.Rptr . 705, 564 P .2d 857].)
• “The use by the trial court of the phrase ‘contributory negligence’ in instructing
‘on the concept of comparative negligence is innocuous. Li v . Y ellow Cab Co.
[citation] abolished the legal doctrine, but not the phrase or the concept of
‘contributory negligence.’ A claimant’ s negligence contributing causally to his
own injury may be considered now not as a bar to his recovery , but merely as a
factor to be considered in measuring the amount thereof.” ( Bradfield v . T rans
W orld Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr . 172].)
• “Generally , a defendant has the burden of establishing that some nonzero
percentage of fault is properly attributed to the plaintif f, other defendants, or
nonparties to the action.” ( Pfeifer , supra , 220 Cal.App.4th at p. 1285.)
• “[W]ithin the comparative fault system, when an employer is liable solely on a
theory of respondeat superior , ‘the employer ’ s share of liability for the plaintiff’ s
damages corresponds to the share of fault that the jury allocates to the
employee.’ ” ( CRST , Inc. v . Superior Court (2017) 1 1 Cal.App.5th 1255, 1261
[218 Cal.Rptr .3d 664].)
• “[P]retreatment negligence by the patient does not warrant a jury instruction on
contributory or comparative negligence. This view is supported by comment m
to section 7 of the Restatement Third of T orts: Apportionment of Liability , which
states: ‘[I]n a case involving negligent rendition of a service, including medical
services, a factfinder does not consider any plaintif f’ s conduct that created the
condition the service was employed to remedy .’ ” ( Harb v . City of Bakersfield
(2015) 233 Cal.App.4th 606, 632 [183 Cal.Rptr .3d 59].)
Secondary Sources
6 W itkin, Summary of California Law (1 1th ed. 2017) T orts, §§ 1 138, 1450-1460,
California T ort Guide (Cont.Ed.Bar 3d ed.) §§ 1.41-1.45
1 Levy et al., California T orts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses , § 4.04 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument , § 90.91 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence , § 380.170
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence , § 165.380 (Matthew
CACI No. 405 NEGLIGENCE
Page last reviewed May 2024
Amherst professor Austin Sarat discusses a legal controversy in Nebraska regarding felony disenfranchisement, specifically focusing on a recent law allowing felons to vote immediately after completing their sentences and the state attorney general’s challenge to this law.
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