CACI 1207B Strict Liability—Comparative Fault of Third Person

California Civil Jury Instructions CACI

1207B Strict Liability—Comparative Fault of Third Person

[Name of defendant] claims that the [negligence/fault] of [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.[Insert one or both of the following:]

[That [name(s) or description(s) of nonparty tortfeasor(s)] negligently modified the [product];] [or]

[That [name(s) or description(s) of nonparty tortfeasor(s)] was [otherwise] [negligent/at fault];]


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

If you find that the [negligence/ [or] fault] of more than one person, including [name of defendant][, [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.]

Derived from former CACI No. 1207 April 2009; Revised December 2009, December 2015

Crowdsource Lawyers

Directions for Use

Give this instruction if the defendant has raised the issue of the comparative fault of a third person who is not also a defendant at trial, including defendants who settled before trial and nonjoined alleged tortfeasors. (See Dafonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; see also CACI No. 406, Apportionment of Responsibility.) For an instruction on the comparative fault of the plaintiff, see CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff.

This instruction may also be used to allocate liability between a negligent and a strictly liable defendant (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 332 [146 Cal. Rptr. 550, 579 P.2d 441].) or between two strictly liable defendants if multiple products are involved. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1198 [74 Cal.Rptr.2d 580].) However, there is no comparative fault among entities in the distribution chain of the same product. Each remains fully liable for the plaintiff’s economic and noneconomic damages. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 325 [213 Cal.Rptr.3d 82].)

In the first sentence, include “also” if the defendant concedes some degree of liability or alleges the comparative fault of the plaintiff, and select “fault” unless the only basis for liability at issue is negligence. Include the last paragraph if any of the defendants or others alleged to have contributed to the plaintiff’s harm are not individuals.

Subsequent misuse or modification may be considered in determining comparative fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable misuse or modification can be a complete defense if it is the sole cause of the plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affirmative Defense—Product Misuse or Modification.

Sources and Authority

“[T]he comparative indemnity doctrine may be utilized to allocate liability between a negligent and a strictly liable defendant.” (Safeway Stores, Inc., supra, 21 Cal.3d at p. 332.)

“The record does not support [defendant]’s assertion that modification of the bracket was the sole cause of the accident. The record does indicate that if the bracket had not been modified there would have been no need to remove it to reach the flange bolts, and thus the modification was one apparent cause of [plaintiff]’s death. However, a number of other causes, or potential causes, were established, including: [plaintiff]’s failure to wear protective clothing; [third party]’s failure to furnish the correct replacement bracket for the valve; [third party]’s failure to furnish [employer] with all of the literature it received from [defendant]; and negligence on the part of [employer] independent of its modification of the valve, including violations of various federal Occupational Safety and Health Administration regulations governing equipment and training in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)

“This case does not present a situation where several defendants in the chain of distribution seek apportionment under Proposition 51 based on their relevant fault for injuries caused by a single defective product. In such a situation, courts have held that Proposition 51 does not apply and each defendant is liable for the plaintiff’s full noneconomic damages under traditional principles of joint and several liability.” (Bigler-Engler, supra, 7 Cal.App 5th at p. 325, fn. 35.)

“Proposition 51 is applicable in a strict liability asbestos exposure case where multiple products cause the plaintiff’s injuries and the evidence provides a basis to allocate liability for noneconomic damages between the defective products. Where the evidence shows that a particular product is responsible for only a part of plaintiff’s injury, Proposition 51 requires apportionment of the responsibility for that part of the injury to that particular product’s chain of distribution.” (Arena, supra, 63 Cal.App.4th at p. 1198.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, §§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253 (Matthew Bender)