CACI No. 405. Comparative Fault of Plaintiff

Judicial Council of California Civil Jury Instructions (2024 edition)

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405.Comparative Fault of Plaintiff
[Name of defendant] claims that [name of plaintiff]’s own negligence
contributed to [his/her/nonbinary pronoun] 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/nonbinary pronoun] 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 tortfeasors, 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
‘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].)
“Generally, a defendant has the burden of establishing that some nonzero
percentage of fault is properly attributed to the plaintiff, other defendants, or
nonparties to the action.” (Pfeifer, supra, 220 Cal.App.4th at p. 1285.)
“[W]ithin the comparative fault system, when an employer is liable solely on a
theory of respondeat superior, ‘the employers share of liability for the plaintiff’s
damages corresponds to the share of fault that the jury allocates to the
employee.’ (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261
[218 Cal.Rptr.3d 664].)
“[P]retreatment negligence by the patient does not warrant a jury instruction on
contributory or comparative negligence. This view is supported by comment m
to section 7 of the Restatement Third of Torts: Apportionment of Liability, which
states: ‘[I]n a case involving negligent rendition of a service, including medical
services, a factfinder does not consider any plaintiff’s conduct that created the
condition the service was employed to remedy.’ (Harb v. City of Bakersfield
(2015) 233 Cal.App.4th 606, 632 [183 Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450-1460,
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.41-1.45
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

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