California Civil Jury Instructions (CACI)

3702. Affirmative Defense of Plaintiff's Agent's Contributory Negligence

[Name of defendant] claims that [name of plaintiff principal]'s harm was caused, in whole or in part, by the negligence of [name of plaintiff's agent]. To succeed on this claim, [name of defendant] must prove all of the following:

1. That [name of plaintiff's agent] was acting as [name of plaintiff principal]'s [agent/employee/[insert other relationship, e.g., "partner"]];

2. That [name of plaintiff's agent] was acting within the scope of [his/her] [agency/employment/[insert other relationship]] when the incident occurred; and

3. That the negligence of [name of plaintiff's agent] caused all or part of [name of plaintiff principal]'s harm.

If [name of defendant] proves the above, [name of plaintiff principal]'s claim is reduced by your determination of the percentage of [name of plaintiff's agent]'s responsibility. I will calculate the actual reduction.

Directions for Use

This instruction could be used by a defendant against a principal/employer to assert the contributory negligence of an agent/employee. For example, in an automobile accident brought by a corporate plaintiff, the defendant could use this instruction to assert that the negligence of the plaintiff's employee/driver contributed to causing the accident.

Sources and Authority

The doctrine of respondeat superior is not limited to the principal's responsibility for injuries to third parties. A defendant also can use the doctrine to support a claim of contributory negligence against a plaintiff principal if the plaintiff's agent was contributorily negligent. (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1079, pp. 478-479.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1079, pp. 478-479

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.08 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, § 248.19 (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

(New September 2003)