CACI 1244 Affirmative Defense—Sophisticated User

California Civil Jury Instructions CACI

1244 Affirmative Defense—Sophisticated User


[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not responsible for any harm to [name of plaintiff] based on a failure to warn because [name of plaintiff] is a sophisticated user of the [product]. To succeed on this defense, [name of defendant] must prove that, at the time of the injury, [name of plaintiff], because of [his/her/nonbinary pronoun] particular position, training, experience, knowledge, or skill, knew or should have known of the [product]’s risk, harm, or danger.


Directions for Use

Give this instruction as a defense to CACI No. 1205, Strict Liability—Failure to Warn—Essential Factual Elements, or CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements.

In some cases, it may be necessary to expand this instruction to state that the plaintiff knew or should have known of the particular risk posed by the product, of the severity of the potential consequences, and how to use the product to reduce or avoid the risks, to the extent that information was known to the defendant. (See Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 536 [166 Cal.Rptr.3d 202].)


Sources and Authority

“A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71 [74 Cal.Rptr.3d 108, 179 P.3d 905].)

“The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products’ potential hazards. The defense is considered an exception to the manufacturer’s general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer’s duty to warn.” (Johnson, supra, 43 Cal.4th at p. 65, internal citation omitted.)

“Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware. Because these sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. The rationale supporting the defense is that ‘the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.’ This is because the user’s knowledge of the dangers is the equivalent of prior notice.” (Johnson, supra, 43 Cal.4th at p. 65, internal citations omitted.)

“[T]he defense applies equally to strict liability and negligent failure to warn cases. The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff’s subjective knowledge.” (Johnson, supra, 43 Cal.4th at pp. 65–66, internal citations omitted.)

“[A] manufacturer is not liable to a sophisticated user for failure to warn, even if the failure to warn is a failure to provide a warning required by statute.” (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 556 [101 Cal.Rptr.3d 726].)

“The sophisticated user defense concerns warnings. Sophisticated users ‘are charged with knowing the particular product’s dangers.’ ‘The rationale supporting the defense is that “the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.” [Citation.]’ [¶] [Plaintiff]’s design defect cause of action was not concerned with warnings. Instead, he alleged that respondents’ design of their refrigerant was defective. We see no logical reason why a defense that is based on the need for warning should apply.” (Johnson, supra, 179 Cal.App.4th at p. 559, internal citations omitted.)

“The relevant time for determining user sophistication for purposes of this exception to a manufacturer’s duty to warn is when the sophisticated user is injured and knew or should have known of the risk.” (Johnson, supra, 43 Cal.4th at p. 73.)

Johnson did not impute an intermediary’s knowledge to the plaintiff, or charge him with any knowledge except that which had been made available to him through his training and which, by reason of his profession and certification, he should have had. In contrast, [defendant]’s proposed instruction is not based on the theory that [plaintiff] had the opportunity to acquire any knowledge of the dangers of asbestos, let alone the obligation to do so. Instead, it contends that its customers … knew or should have known (from public sources) of the dangers of asbestos, and that its duty to warn [plaintiff] is measured by the knowledge [the customers] should have had. It is apparent that such a theory has nothing to do with Johnson.” (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 28–29 [117 Cal.Rptr.3d 791].)

“Thus, in actions by employees or servants, the critical issue concerns their knowledge (or potential knowledge), rather than an intermediary’s sophistication. [¶] This conclusion flows directly from [Restatement Third of Torts] section 388 itself. Under section 388, a supplier of a dangerous item to users ‘directly or through a third person’ is subject to liability for a failure to warn, when the supplier ‘has no reason to believe that those for whose use the [item] is supplied will realize its dangerous condition.’ Accordingly, to avoid liability, there must be some basis for the supplier to believe that the ultimate user knows, or should know, of the item’s hazards. In view of this requirement, the intermediary’s sophistication is not, as matter of law, sufficient to avert liability; there must be a sufficient reason for believing that the intermediary’s sophistication is likely to operate to protect the user, or that the user is likely to discover the hazards in some other manner. The fact that the user is an employee or servant of the sophisticated intermediary cannot plausibly be regarded as a sufficient reason, as a matter of law, to infer that the latter will protect the former. We therefore reject [defendant]’s contention that an intermediary’s sophistication invariably shields suppliers from liability to the intermediary’s employees or servants.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1296–1297 [164 Cal.Rptr.3d 112].)

“In order to establish the defense, a manufacturer must demonstrate that sophisticated users of the product know what the risks are, including the degree of danger involved (i.e., the severity of the potential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer.” (Buckner, supra, 222 Cal.App.4th at p. 536.)

“ ‘Under the “should have known” standard there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone. The obvious danger rule is an objective test, and the courts do not inquire into the user’s subjective knowledge in such a case. In other words, even if a user was truly unaware of a product’s hazards, that fact is irrelevant if the danger was objectively obvious. [Citations.] Thus, under the sophisticated user defense, the inquiry focuses on whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury.’ [Citation]” (Moran v. Foster Wheeler Energy Corp. (2016) 246 Cal.App.4th 500, 511 [200 Cal.Rptr.3d 902].)

“[S]peculation about a risk does not give rise to constructive knowledge of a risk under the ‘should have known’ test.” (Scott v. Ford Motor Co. (2014) 224 Cal.App.4th 1492, 1501 [169 Cal.Rptr.3d 823], original italics.)


Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631, 1703, 1708–1709
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability For Defective Products, ¶ 2:1277 (The Rutter Group)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.185 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.246 (Matthew Bender)