CACI 1249 Affirmative Defense—Reliance on Knowledgeable Intermediary

California Civil Jury Instructions CACI

1249 Affirmative Defense—Reliance on Knowledgeable Intermediary

[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 defendant] sold [specify product, e.g., asbestos] to an intermediary purchaser [name of intermediary]; and [name of defendant] relied on [name of intermediary] to provide adequate warnings to end users of [e.g., asbestos]. To succeed on this defense, [name of defendant] must prove:

1.That [name of defendant] sold [specify product, e.g., asbestos] to [name of intermediary];

[2.That [name of defendant] conveyed adequate warnings of the particular risks in the use of [e.g., asbestos] to [name of intermediary].]


[2.That [name of defendant] knew that [name of intermediary] was aware of, or should have been aware of, the particular risks of [e.g., asbestos];]


3.That [name of defendant] actually and reasonably relied on [name of intermediary] to convey adequate warnings of the particular risks in the use of [e.g., asbestosto those who, like [name of plaintiff], might encounter the risk of [e.g., asbestos].

Reasonable reliance depends on many factors, including, but not limited to:

a.The degree of risk posed by [e.g., asbestos];

b.The feasibility of [name of defendant]’s directly warning those who might encounter [e.g., asbestos] in a finished product; and

c.The likelihood that the intermediary purchaser will convey warnings.

In determining the likelihood that [name of intermediary] would convey adequate warnings, consider what a supplier of [e.g., asbestos] should know about [name of intermediary]. Factors to consider include, but are not limited to:

(1)Whether [name of intermediary] knew or should have been aware of the specific risks posed by [e.g., asbestos];

(2)Whether [name of intermediary] had a reputation for carefulness; and

(3)Whether [name of intermediary] was willing to, and had the ability to, communicate adequate warnings to end users.

Directions for Use

Give this instruction if the defendant supplier of materials claims that it gave warnings to an intermediary purchaser or relied on an intermediary purchaser to provide warnings to end users of the product. Reasonable reliance on an intermediary is an affirmative defense to a claim of failure to warn under both strict liability and negligence theories. (See Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 187 [202 Cal.Rptr.3d 460, 370 P.3d 1022].)

This instruction sets forth all of the elements of the defense. The reasonableness of the defendant’s reliance under factors a–c on the intermediary to warn end users is a question of fact. (Webb, supra, 63 Cal.4th at p. 180.)

Sources and Authority

“When a hazardous raw material is supplied for any purpose, including the manufacture of a finished product, the supplier has a duty to warn about the material’s dangers. Under the sophisticated intermediary doctrine, the supplier can discharge this duty if it conveys adequate warnings to the material’s purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies on the purchaser to convey adequate warnings to others, including those who encounter the material in a finished product. Reasonable reliance depends on many circumstances, including the degree of risk posed by the material, the likelihood the purchaser will convey warnings, and the feasibility of directly warning end users. The doctrine balances the competing policies of compensating those injured by dangerous products and encouraging conduct that can feasibly be performed.” (Webb, supra, 63 Cal.4th at p. 177.)

“To establish a defense under the sophisticated intermediary doctrine, a product supplier must show not only that it warned or sold to a knowledgeable intermediary, but also that it actually and reasonably relied on the intermediary to convey warnings to end users. This inquiry will typically raise questions of fact for the jury to resolve unless critical facts establishing reasonableness are undisputed.” (Webb, supra, 63 Cal.4th at pp. 189–190.)

“Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings.” (Webb, supra, 63 Cal.4th at p. 187.)

“Like the sophisticated user defense, the sophisticated intermediary defense applies to failure to warn claims sounding in either strict liability or negligence. As we have previously observed, ‘there is little functional difference between the two theories in the failure to warn context.’ ‘[I]n failure to warn cases, whether asserted on negligence or strict liability grounds, there is but one unitary theory of liability which is negligence based—the duty to use reasonable care in promulgating a warning.’ ” (Webb, supra, 63 Cal.4th at p. 187, internal citations omitted.)

“The goal of products liability law is not merely to spread risk but also ‘to “induce conduct that is capable of being performed.” ’ The sophisticated intermediary doctrine serves this goal by recognizing a product supplier’s duty to warn but permitting the supplier to discharge this duty in a responsible and practical way. It appropriately and equitably balances the practical realities of supplying products with the need for consumer safety.” (Webb, supra, 63 Cal.4th at p. 187, internal citation omitted.)

“The ‘gravity’ of risk factor encompasses both the ‘serious or trivial character of the harm’ that is possible and the likelihood that this harm will result. This factor focuses on the nature of the material supplied. If the substance is extremely dangerous, the supplier may need to take additional steps, such as inquiring about the intermediary’s warning practices, to ensure that warnings are communicated. The overarching question is the reasonableness of the supplier’s conduct given the potential severity of the harm.” (Webb, supra, 63 Cal.4th at p. 190, internal citation omitted.)

“The second Restatement factor, measuring the likelihood that the intermediary will warn, focuses on the reliability of the intermediary. The supplier’s knowledge about the intermediary’s reliability is judged by an objective standard, based on what a reasonable supplier would have known under the circumstances. Relevant concerns for this factor include, for example, the intermediary’s level of knowledge about the hazard, its reputation for carefulness or consideration, and its willingness, and ability, to communicate adequate warnings to end users. Of course, a supplier is always free to inquire about the intermediary’s warning policies and practices as a means of assessing the intermediary’s reliability. The Second Restatement suggests economic motivations may also be important. For example, an intermediary manufacturer may have an incentive to withhold necessary information about a component material if warnings would make its product less attractive.” (Webb, supra, 63 Cal.4th at p. 190, internal citations omitted.)

“It is also significant if, under the circumstances giving rise to the plaintiff’s claim, the intermediary itself had a legal duty to warn end users about the particular hazard in question. In general, ‘ “every person has a right to presume that every other person will perform his duty and obey the law.” ’ As the Restatement notes, ‘[m]odern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.’ This consideration may be especially relevant in the context of a raw material or other component supplied for use in making a finished product. Under California law, a product manufacturer has a legal duty to warn its customers of all known or knowable dangers arising from use of the product. However, regardless of the purchaser’s independent duty, the supplier cannot reasonably ignore known facts that would provide notice of a substantial risk that the intermediary might fail to warn or that warnings might fail to reach the consumer.” (Webb, supra, 63 Cal.4th at p. 191, internal citations omitted.)

“When raw materials are supplied in bulk for the manufacture of a finished product, it may be difficult for the supplier to convey warnings to the product’s ultimate consumers. These suppliers likely have no way to identify ultimate product users and no ready means to communicate with them.” (Webb, supra, 63 Cal.4th at p. 191.)

“We recognize that direct proof of actual reliance may be difficult to obtain when, as in the case of latent disease, the material was supplied to an intermediary long ago. However, actual reliance is an inference the factfinder should be able to draw from circumstantial evidence about the parties’ dealings.” (Webb, supra, 63 Cal.4th at p. 193.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1321
1 California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21[3][c] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11[10][b] (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.263 et seq. (Matthew Bender)