CACI No. 1207B. Strict Liability—Comparative Fault of Third Person

Judicial Council of California Civil Jury Instructions (2017 edition)

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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:]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)]
negligently modified the [product];] [or]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)] was
[otherwise] [negligent/at fault];]
1. and
2. That this [negligence/fault] was a substantial factor in causing
[name of plaintiff]’s harm.
If you find that the [negligence/ [or] 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
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,
December 2015
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
This instruction may also be used to allocate liability between a negligent and a
strictly liable defendant (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322,
332 [146 Cal. Rptr. 550, 579 P.2d 441].) or between two strictly liable defendants
if multiple products are involved. (Arena v. Owens-Corning Fiberglas Corp. (1998)
63 Cal.App.4th 1178, 1198 [74 Cal.Rptr.2d 580].) However, there is no
comparative fault among entities in the distribution chain of the same product.
Each remains fully liable for the plaintiff’s economic and noneconomic damages.
(Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 623 [65 Cal.Rptr.2d
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
• “[T]he comparative indemnity doctrine may be utilized to allocate liability
between a negligent and a strictly liable defendant.” (Safeway Stores, Inc.,
supra, 21 Cal.3d at p. 332.)
• “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.)
• ‘We conclude Proposition 51 is inapplicable; a strictly liable defendant may not
reduce or eliminate its responsibility to plaintiff for damages caused by a
defective product by shifting blame to others in the product’s chain of
distribution.” (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 623
[65 Cal.Rptr.2d 532].)
• “Proposition 51 is applicable in a strict liability asbestos exposure case where
multiple products cause the plaintiff’s injuries and the evidence provides a basis
to allocate liability for noneconomic damages between the defective products.
Where the evidence shows that a particular product is responsible for only a
part of plaintiff’s injury, Proposition 51 requires apportionment of the
responsibility for that part of the injury to that particular product’s chain of
distribution.” (Arena, supra, 63 Cal.App.4th at p. 1198.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, § 1542
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
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)
1208–1219. Reserved for Future Use

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