California Civil Jury Instructions (CACI) (2017)

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

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3702.Affirmative Defense—Comparative Fault of Plaintiff’s Agent
[Name of defendant] claims that the negligence of [name of plaintiff’s
agent] contributed to [name of plaintiff principal]’s harm. 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.,
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] was a substantial
factor in causing [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.
New September 2003; Revised December 2009
Directions for Use
This instruction may be used by a defendant against a principal/employer to assert
the comparative fault of an agent/employee. For example, in an automobile
accident lawsuit brought by a corporate plaintiff, the defendant may 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 (10th ed. 2005) Torts, § 1324.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1324
2California 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,
§ 427.23 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.43 (Matthew Bender)