California Civil Jury Instructions (CACI)

3800. Comparative Fault Between and Among Tortfeasors

[Name of indemnitee] claims that [he/she] [is/was] required to pay [describe liability, e.g., "a court judgment in favor of [name of plaintiff]"] and that [name of indemnitor] must reimburse [name of indemnitee] based on [name of indemnitor]'s share of responsibility. In order for [name of indemnitee] to recover from [name of indemnitor], [name of indemnitee] must prove both of the following:

1. That [name of indemnitor] [was negligent/[describe underlying tort]]; and

2. That [name of indemnitor]'s [negligence/[describe tortious conduct]] contributed as a substantial factor in causing [name of plaintiff]'s harm.

[[Name of indemnitor] claims that [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]'s harm. To succeed, [name of indemnitor] must prove both of the following:

1. That [name of indemnitee] [and] [insert identification of others] [[was/were] negligent/[other basis of responsibility]]; and

2. That [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]'s harm.

You will be asked to determine the percentages of responsibility of [name of indemnitee], [name of indemnitor] [, and all other persons responsible] for [name of plaintiff]'s harm.]

Directions for Use

Read the last bracketed portion when the indemnitor claims he or she was not the sole cause.

This instruction is intended for use in cases where the plaintiff seeks equitable indemnity from another responsible tortfeasor who was not a party to the original action or proceeding from which the liability in question arose. For cases in which the indemnitee seeks equitable ndemnity against a co-defendant or cross-defendant as part of the original tort action, see CACI No. 406, Apportionment of Responsibility.

Sources and Authority

"In order to attain . . . a system . . . in which liability for an indivisible injury caused by concurrent tortfeasors will be borne by each individual tortfeasor 'in direct proportion to [his] respective fault,' we conclude that the current equitable indemnity rule should be modified to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis." (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598 [146 Cal.Rptr. 182, 578 P.2d 899], internal citation omitted.)

"[C]omparative equitable indemnity includes the entire range of possible apportionments, from no right to any indemnity to a right of complete indemnity. Total indemnification is just one end of the spectrum of comparative equitable indemnification." (Far West Financial Corp. v. D & S Co., Inc. (1988) 46 Cal.3d 796, 808 [251 Cal.Rptr. 202, 760 P.2d 399], internal quotation marks and citation omitted.)

"[W]e conclude that a cause of action for equitable indemnity is a legal action seeking legal relief. As such, the [defendant] was entitled to a jury trial." (Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 698 [59 Cal.Rptr.2d 303].)

"[W]e hold that . . . the comparative indemnity doctrine may be utilized 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].)

For purposes of equitable indemnity, "it matters not whether the tortfeasors acted in concert to create a single injury, or successively, in creating distinct and divisible injury." (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1203 [213 Cal.Rptr. 781].)

"[W]e conclude comparative fault principles should be applied to intentional torts, at least to the extent that comparative equitable indemnification can be applied between concurrent intentional tortfeasors." (Baird v. Jones (1993) 21 Cal.App.4th 684, 690 [27 Cal.Rptr.2d 232].)

Where there is a fault-free plaintiff, "[a]n insolvent defendant's shortfall [in payment of the judgment] should be shared proportionately by the solvent defendants as though the insolvent or absent person had riginally not participated." (Paradise Valley Hospital v. Schlossman (1983) 143 Cal.App.3d 87, 93 [191 Cal.Rptr. 531].)

Statutes may limit one's right to recover comparative indemnity. (See, e.g., E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1259 [258 Cal.Rptr. 783] (Labor Code section 4558(d) provides that there is no right of action for comparative indemnity against an employer for injuries resulting from the removal of an operation guard from a punch press).)

Secondary Sources

5 Witkin, Summary of California Law (9th ed. 1988) Torts, § 89, pp. 162- 163; id. (2002 supp.) at §§ 89-90A, 95, pp. 80-83

5 Levy et al., California Torts, Ch. 74, Comparative Negligence, §§ 74.01- 74.13 (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 3d ed. 1996) General Principles, §§ 1.52-1.59, pp. 41-46 (rel. 4/00)

25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution (Matthew Bender)

11 California Points and Authorities, Ch. 115, Indemnity and Contribution (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice: Torts (1992) Indemnity, Contribution, and Setoff, §§ 4:14-4:18, pp. 18-22

(New September 2003)