California Civil Jury Instructions (CACI)

405. Comparative Fault of Plaintiff

[Name of defendant] claims that [name of plaintiff]’s own negligence contributed to [his/her] harm. To succeed on this claim, [name of defendant] must prove both of the following:

1. That [name of plaintiff] was negligent; and

2. That [name of plaintiff]’s negligence was a substantial factor in causing [his/her] harm.

If [name of defendant] proves the above, [name of plaintiff]’s damages are reduced by your determination of the percentage of [name of plaintiff]’s responsibility. I will calculate the actual reduction.

New September 2003; Revised December 2009

Directions for Use

This instruction should not be given absent substantial evidence that plaintiff was negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)

If there are multiple defendants or alleged nondefendant torteasors, also give CACI No. 406, Apportionment of Responsibility.

Sources and Authority

  • In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 810 [119 Cal.Rptr. 858, 532 P.2d 1226], the court concluded that the “all-or-nothing” rule of contributory negligence should be abandoned in favor of a rule that assesses liability in proportion to fault.
  • Restatement Second of Torts, section 463, defines “contributory negligence” as “conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.”
  • It is settled that the issue of contributory negligence must be presented to the jury whenever it is asserted as a defense and there is “some evidence of a substantial character” to support it. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857]; Scott v. Alpha Beta Co. (1980) 104
  • Cal.App.3d 305, 310 [163 Cal.Rptr. 544].)
  • Courts have found that it is not error to use the phrase “contributory negligence” in a jury instruction on comparative negligence: “The use by the trial court of the phrase ‘contributory negligence’ in instructing on the concept of comparative negligence is innocuous. Li v. Yellow Cab Co. [citation] abolished the legal doctrine, but not the phrase or the concept of ‘contributory negligence.’ A claimant’s negligence contributing causally to his own injury may be considered now not as a bar to his recovery, but merely as a factor to be considered in measuring the amount thereof.” (Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
  • The defendant has the burden of proving contributory negligence. (Drust, supra, 113 Cal.App.3d at p. 6.)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1003, 1295–1303

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.38–1.39

1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the Risk, and Related Defenses, § 4.04 (Matthew Bender)

4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)

33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.170 (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, § 165.380 (Matthew Bender)