California Civil Jury Instructions (CACI)

406. Apportionment of Responsibility

[[Name of defendant] claims that the [negligence/fault] of [insert name(s) or description(s) of nonparty tortfeasor(s)] [also] contributed to [name of plaintiff]’s harm. To succeed on this claim, [name of defendant] must prove both of the following:

1. That [insert name(s) or description(s) of nonparty tortfeasor(s)] [was/were] [negligent/at fault]; and

2. That the [negligence/fault] of [insert name(s) or description(s) of nonparty tortfeasor(s)] was a substantial factor in causing [name of plaintiff]’s harm.]

If you find that the [negligence/fault] of more than one person including [name of defendant] [and] [[name of plaintiff]/ [and] [name(s) or description(s) of nonparty tortfeasor(s)]] was a substantial factor in causing [name of plaintiff]’s harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100 percent.

You will make a separate finding of [name of plaintiff]’s total damages, if any. In determining an amount of damages, you should not consider any person’s assigned percentage of responsibility.

[“Person” can mean an individual or a business entity.]

New September 2003; Revised June 2006, December 2007, December 2009, June 2011

Directions for Use

This instruction is designed to assist the jury in completing CACI No. VF-402, Negligence—Fault of Plaintiff and Others at Issue, which must be given in a multiple-tortfeasor case to determine comparative fault. VF-402 is designed to compare the conduct of all defendants, the conduct of the plaintiff, and the conduct of any nonparty tortfeasors.

Throughout, select “fault” if there is a need to allocate responsibility between tortfeasors whose alleged liability is based on conduct other than negligence, e.g., strict products liability.

Include the first paragraph if the defendant has presented evidence that the conduct of one or more nonparties contributed to the plaintiff’s harm. (See Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 33 [117 Cal.Rptr.3d 791] [defendant has burden to establish concurrent or alternate causes].) “Nonparties” include the universe of tortfeasors who are not present at trial, including defendants who settled before trial and nonjoined alleged tortfeasors. (Dafonte v. Up-Right (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the defendant concedes some degree of liability.

If the plaintiff’s comparative fault is also at issue, give CACI No. 405, Comparative Fault of Plaintiff, in addition to this instruction.

Include the last paragraph if any of the defendants or others alleged to have contributed to the plaintiff’s harm is not an individual.

Sources and Authority

  • Civil Code section 1431.2(a) (Proposition 51) provides: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”
  • The Supreme Court has held that the doctrine of joint and several liability survived the adoption of comparative negligence: “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only ‘in proportion to the amount of negligence attributable to the person recovering.’ ” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v. Yellow Cab Co. (1975) 13 Cal.3d 804,
  • 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
  • The Supreme Court in American Motorcycle Assn. also modified the equitable indemnity rule “to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.” (American Motorcycle Assn., supra, 20 Cal.3d at p. 591.)
  • “[A] ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff’s injuries, not merely that of ‘defendant[s]’ present in the lawsuit.” (Dafonte, supra, 2 Cal.4th at p. 603, original italics.)
  • “[U]nder Proposition 51, fault will be allocated to an entity that is immune from paying for its tortious acts, but will not be allocated to an entity that is not a tortfeasor, that is, one whose actions have been declared not to be tortious.” (Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d 695], original italics.)
  • “A defendant bears the burden of proving affirmative defenses and indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries. Placing the burden on defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d 336].)
  • “When a defendant is liable only by reason of a derivative nondelegable duty arising from his status as employer or landlord or vehicle owner or coconspirator, or from his role in the chain of distribution of a single product in a products liability action, his liability is secondary (vicarious) to that of the actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v. Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics, internal citations omitted.)
  • “[T]he jury found that defendants are parties to a joint venture. The incidents of a joint venture are in all important respects the same as those of a partnership. One such incident of partnership is that all partners are jointly and severally liable for partnership obligations, irrespective of their individual partnership interests. Because joint and several liability arises from the partnership or joint venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni (2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citations omitted.)
  • Restatement Third of Torts, Apportionment Liability, section 7, comment (g), provides in part: “Percentages of responsibility are assigned by special verdict to any plaintiff, defendant, settlor, immune person, or other relevant person . . . whose negligence or other legally culpable conduct was a legal cause of the plaintiff’s injury. The percentages of responsibility must total 100 percent. The factfinder makes a separate finding of the plaintiff’s total damages. Those damages are reduced by the percentage of responsibility the factfinder assigns to the plaintiff. The resulting amount constitutes the plaintiff’s ‘recoverable damages.’ ”
  • Restatement Third of Torts, Apportionment Liability, section 26, comment (h), provides in part: “A more attractive solution is to place the burden of proof on the party seeking to avoid responsibility for the entire injury, along with relaxing the burden of production. This allows the factfinder to divide damages based on the available evidence. Ultimately, however, the sufficiency of the evidence is determined by applicable procedural rules.”

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 50, 52–56, 59, 60, 63, 64, 68

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52–1.59

Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And Judgment, ¶ 9:662.3 (The Rutter Group)

1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the

Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)

5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03 (Matthew Bender)

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

California Products Liability Actions, Ch. 2, Liability for Defective Products,

§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)

25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution, § 300.61 (Matthew Bender)

11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04 et seq. (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380 (Matthew Bender)