407.Comparative Fault of Decedent
[Name of defendant] claims that [name of decedent]’s own negligence
contributed to [his/her] death. To succeed on this claim, [name of
defendant] must prove both of the following:
1. That [name of decedent] was negligent; and
2. That [name of decedent]’s negligence was a substantial factor in
causing [his/her] death.
If [name of defendant] proves the above, [name of plaintiff]’s damages are
reduced by your determination of the percentage of [name of decedent]’s
responsibility. I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction should not be given absent evidence that the decedent was
negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
Sources and Authority
• “[P]rinciples of comparative fault and equitable indemniﬁcation support an
apportionment of liability among those responsible for the loss, including the
decedent, whether it be for personal injury or wrongful death.” (Horwich v.
Superior Court (1999) 21 Cal.4th 272, 285 [87 Cal.Rptr.2d 222, 980 P.2d 927].)
• “[I]n wrongful death actions, the fault of the decedent is attributable to the
surviving heirs whose recovery must be offset by the same percentage.
[Citation.]” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1395 [273
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1400
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.07 (Matthew Bender)
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, § 55.05
15 California Forms of Pleading and Practice, Ch. 181, Death and Survival Actions,
§ 181.12 (Matthew Bender)
6 California Points and Authorities, Ch. 66, Death and Survival Actions, § 66.20 et
seq. (Matthew Bender)