1207. Strict Liability - Comparative Fault - Contributory Negligence
[Name of defendant] claims that [name of plaintiff]'s harm was caused, in whole or in part, by [name of plaintiff]'s [and/or] [name of third person]'s negligence. To succeed on this claim, [name of defendant] must prove both of the following:
1. [insert one or both of the following:]
[That [name of plaintiff] [and/or] [name of third person] negligently [used/misused/modified] the [product];] [or]
[That [name of plaintiff] [and/or] [name of third person] [was/were] [otherwise] negligent;] nd
2. That this negligence was a substantial factor in causing [name of plaintiff]'s harm.
[If the product was misused or modified in a way that was reasonably foreseeable to [name of defendant], [he/she/it] may still succeed on this claim if you find that the misuse or modification was negligent and was a substantial factor in causing [name of plaintiff]'s 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 [and/or] [name of third person]'s responsibility. I will calculate the actual reduction.
Directions for Use
See also CACI No. 405, Plaintiff's Contributory Negligence, CACI No. 406, Apportionment of Responsibility, and CACI No. 407, Decedent's Contributory Negligence.
Give this instruction only where the defendant has raised the issue of comparative fault.
Sources and Authority
In Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 [144 Cal.Rptr. 380, 575 P.2d 1162], the California Supreme Court held that comparative fault applies to strict products liability actions. The court explained: "[W]e do not permit plaintiff's own conduct relative to the product to escape unexamined, and as to that share of plaintiff's damages which flows from his own fault we discern no reason of policy why it should, following Li, be borne by others."
"[A] petitioner's recovery may accordingly be reduced, but not barred, where his lack of reasonable care is shown to have contributed to his injury." (Bradfield v. Trans World Airlines (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, §§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability (Matthew Bender)
(New September 2003)