California Civil Jury Instructions (CACI)

1207B. Strict Liability—Comparative Fault of Third Person

[Name of defendant] claims that the [negligence/fault] of [name(s) or description(s) of nonparty tortfeasor(s)] [also] contributed to [name of plaintiff]’s harm. To succeed on this claim, [name of defendant] must prove both of the following:

1. [Insert one or both of the following:]

[That [name(s) or description(s) of nonparty tortfeasor(s)] negligently modified the [product];] [or]

[That [name(s) or description(s) of nonparty tortfeasor(s)] was [otherwise] [negligent/at fault];]


2. That this [negligence/fault] was a substantial factor in causing [name of plaintiff]’s harm.

If you find that the [negligence/fault] of more than one person, including [name of defendant][, [name of plaintiff],] and [name(s) or description(s) of nonparty tortfeasor(s)], was a substantial factor in causing [name of plaintiff]’s harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100 percent.

You will make a separate finding of [name of plaintiff]’s total damages, if any. In determining an amount of damages, you should not consider any person’s assigned percentage of responsibility.

[“Person” can mean an individual or a business entity.]

Derived from former CACI No. 1207 April 2009; Revised December 2009

Directions for Use

Give this instruction if the defendant has raised the issue of the comparative fault of a third person who is not also a defendant at trial, including defendants who settled before trial and nonjoined alleged tortfeasors. (See Dafonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; see also CACI No. 406, Apportionment of Responsibility.) For an instruction on the comparative fault of the plaintiff, see CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff.

In the first sentence, include “also” if the defendant concedes some degree of liability or alleges the comparative fault of the plaintiff, and select “fault” unless the only basis for liability at issue is negligence. Include the last paragraph if any of the defendants or others alleged to have contributed to the plaintiff’s harm are not individuals.

Subsequent misuse or modification may be considered in determining comparative fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable misuse or modification can be a complete defense if it is the sole cause of the plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative Defense—Product Misuse or Modification.

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, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
  • “The record does not support [defendant]’s assertion that modification of the bracket was the sole cause of the accident. The record does indicate that if the bracket had not been modified there would have been no need to remove it to reach the flange bolts, and thus the modification was one apparent cause of [plaintiff]’s death. However, a number of other causes, or potential causes, were established, including: [plaintiff]’s failure to wear protective clothing; [third party]’s failure to furnish the correct replacement bracket for the valve; [third party]’s failure to furnish [employer] with all of the literature it received from [defendant]; and negligence on the part of [employer] independent of its modification of the valve, including violations of various federal Occupational Safety and Health Administration regulations governing equipment and training in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)

Secondary Sources

Witkin, Summary of California Law (10th ed. 2005) Torts, § 1542

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, § 190.253 (Matthew Bender)