California Civil Jury Instructions (CACI)

2904. Contributory Negligence

[Name of defendant] claims that [name of plaintiff/decedent] was negligent and that [his/her] negligence contributed to [his/her] own [harm/death]. To succeed, [name of defendant] must prove both of the following: 1. That [name of plaintiff/decedent] was negligent; and 2. That [name of plaintiff/decedent]'s negligence was a cause of [his/her] [harm/death].

[Name of plaintiff/decedent]'s negligence, if any, was a cause of [his/her] own [harm/death] if it played any part, no matter how small, in bringing about [his/her] [harm/death], even if other factors also contributed to [his/her] [harm/death].

If you decide that [name of defendant] was negligent but also decide that [name of plaintiff/decedent]'s negligence contributed to the harm, then you must determine the percentage of negligence that you attribute to [name of plaintiff/decedent].

Directions for Use

This instruction does not apply in cases where the claim is based on a violation of the Federal Safety Appliance Act or the Boiler Inspection Act.

For a definition of the term "negligence," see CACI No. 401, Basic Standard of Care.

Sources and Authority

45 U.S.C. section 53 provides, in part: "[T]he fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."

"The FELA provides that defense of contributory negligence is not available to an employer to defeat an employee's claim for injury, but nly to diminish the amount of damages in proportion to the amount of negligence attributable to the employee. The burden of proving contributory negligence is on the defendant." (Torres v. Southern Pacific Co. (1968) 260 Cal.App.2d 757, 763 [67 Cal.Rptr. 428], internal citations omitted.)

(New September 2003)