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
• “[W]e conclude that: . . . The doctrine of comparative negligence is preferable
to the ‘all-or-nothing’ doctrine of contributory negligence from the point of
view of logic, practical experience, and fundamental justice; . . . .” (Li v. Yellow
Cab Co. (1975) 13 Cal.3d 804, 808 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability. The doctrine “is a ﬂexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other theories
of responsibility), in order to arrive at an “equitable apportionment or allocation
of loss.’ ” [Citation.]’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th
1270, 1285 [164 Cal.Rptr.3d 112].)
• “Where contributory negligence is asserted as a defense, and where there is
‘some evidence of a substantial character’ to support a ﬁnding that such
negligence occurred, it is prejudicial error to refuse an instruction on this issue,
since defendant is thereby denied a basic theory of his defense.” (Hasson v.
Ford Motor Co. (1977) 19 Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857].)
• “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