CACI 3702 Affirmative Defense—Comparative Fault of Plaintiff’s Agent

California Civil Jury Instructions CACI

3702 Affirmative Defense—Comparative Fault of Plaintiff’s Agent

[Name of defendant] claims that the negligence of [name of plaintiff’s agent] contributed to [name of plaintiff principal]’s harm. To succeed on this claim, [name of defendant] must prove all of the following:

1.That [name of plaintiff’s agent] was acting as [name of plaintiff principal]’s [agent/employee/[insert other relationship, e.g., “partner”]];

2.That [name of plaintiff’s agent] was acting within the scope of [his/her/nonbinary pronoun] [agency/employment/[insert other relationship]] when the incident occurred; and

3.That the negligence of [name of plaintiff’s agent] was a substantial factor in causing [name of plaintiff principal]’s harm.

If [name of defendant] proves the above, [name of plaintiff principal]’s claim is reduced by your determination of the percentage of [name of plaintiff’s agent]’s responsibility. I will calculate the actual reduction.

Directions for Use

This instruction may be used by a defendant against a principal/employer to assert the comparative fault of an agent/employee. For example, in an automobile accident lawsuit brought by a corporate plaintiff, the defendant may use this instruction to assert that the negligence of the plaintiff’s employee/driver contributed to causing the accident.

Sources and Authority

The doctrine of respondeat superior is not limited to the principal’s responsibility for injuries to third parties. A defendant also can use the doctrine to support a claim of contributory negligence against a plaintiff principal if the plaintiff’s agent was contributorily negligent. (See 6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1481.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1481
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.08 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.19 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent, § 427.23 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.43 (Matthew Bender)