CACI No. 2904. Comparative Fault
Judicial Council of California Civil Jury Instructions (2023 edition)
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2904.Comparative Fault
[Name of defendant] claims that [name of plaintiff/decedent] was negligent
and that [his/her/nonbinary pronoun] negligence contributed to [his/her/
nonbinary pronoun] 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/nonbinary pronoun] [harm/death].
[Name of plaintiff/decedent]’s negligence, if any, was a cause of [his/her/
nonbinary pronoun] own [harm/death] if it played any part, no matter
how small, in bringing about [his/her/nonbinary pronoun] [harm/death],
even if other factors also contributed to [his/her/nonbinary pronoun]
[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].
New September 2003; Revised December 2009
Directions for Use
This instruction does not apply if 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
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• “The FELA provides that defense of contributory negligence is not available to
an employer to defeat an employee’s claim for injury, but only 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.)
• “Neither assumption of the risk nor the contributory negligence of the employee
bars recovery, if the injury was at least in part the result of the employer’s
negligence.” (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 276 [189
Cal.Rptr.3d 150].)
• “[T]he same standard of causation applies to railroad negligence under Section 1
180
as to plaintiff contributory negligence under Section 3.” (Norfolk Southern Ry. v.
Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
• “Under this statute the test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
(Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506 [77 S.Ct.
443, 1 L.Ed.2d 493].)
• “In sum, the understanding of Rogers we here affirm ‘has been accepted as
settled law for several decades.’ ‘Congress has had [more than 50] years in
which it could have corrected our decision in [Rogers] if it disagreed with it, and
has not chosen to do so.’ Countless judges have instructed countless juries in
language drawn from Rogers. To discard or restrict the Rogers instruction now
would ill serve the goals of ‘stability’ and ‘predictability’ that the doctrine of
statutory stare decisis aims to ensure.” (CSX Transp., Inc. v. McBride (2011) 564
U.S. 685, 699 [131 S.Ct. 2630, 180 L.Ed.2d 637], internal citations omitted.)
• “The common law concept of proximate cause . . . has not been adopted as the
causation test in F.E.L.A. cases. Causation in an F.E.L.A. case exists even if
there is a plurality of causes, including the negligence of the defendant or of a
third person. The negligence of the employer need not be the sole cause or even
a substantial cause of the ensuing injury.” (Parker v. Atchison, Topeka and Santa
Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 131
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.42
(Matthew Bender)
FELA CACI No. 2904
181
© Judicial Council of California.
