CACI 3800 Comparative Fault Between and Among Tortfeasors
California Civil Jury Instructions CACI
3800 Comparative Fault Between and Among Tortfeasors
[Name of indemnitee] claims that [he/she/nonbinary pronoun] [is/was] required to pay [describe liability, e.g., “a court judgment in favor of [name of plaintiff]”] and that [name of indemnitor] must reimburse [name of indemnitee] based on [name of indemnitor]’s share of responsibility. In order for [name of indemnitee] to recover from [name of indemnitor], [name of indemnitee] must prove both of the following:
1.That [name of indemnitor] [was negligent/[describe underlying tort]]; and
2.That [name of indemnitor]’s [negligence/[describe tortious conduct]] contributed as a substantial factor in causing [name of plaintiff]’s harm.
[[Name of indemnitor] claims that [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]’s harm. To succeed, [name of indemnitor] must prove both of the following:
1.That [name of indemnitee] [and] [insert identification of others] [[was/were] negligent/[other basis of responsibility]]; and
2.That [name of indemnitee] [and] [insert identification of others] contributed as [a] substantial factor[s] in causing [name of plaintiff]’s harm.
You will be asked to determine the percentages of responsibility of [name of indemnitor] [,/ and] [[name of indemnitee][, and] all other persons responsible] for [name of plaintiff]’s harm.]
New September 2003; Revised May 2020
https://crowdsourcelawyers.com/judicial-council-california-civil-jury-instructions-caci
Directions for Use
Read the last bracketed portion when the indemnitor claims that the indemnitor was not the sole cause of the indemnitee’s liability or loss.
This instruction is intended for use in cases where the plaintiff seeks equitable indemnity from another responsible tortfeasor who was not a party to the original action or proceeding from which the liability in question arose. For cases in which the indemnitee seeks equitable indemnity against a co-defendant or cross-defendant as part of the original tort action, see CACI No. 406, Apportionment of Responsibility.
Sources and Authority
•“[T]he right to indemnity flows from payment of a joint legal obligation on another’s behalf.” (AmeriGas Propane, LP v. Landstar Ranger, Inc. (2014) 230 Cal.App.4th 1153, 1167 [179 Cal.Rptr.3d 330].)
•“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is … equitably responsible.” (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217 [131 Cal.Rptr.3d 41].)
•“In order to attain … a system … in which liability for an indivisible injury caused by concurrent tortfeasors will be borne by each individual tortfeasor ‘in direct proportion to [his] respective fault,’ we conclude that the current equitable indemnity rule should be modified to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598 [146 Cal.Rptr. 182, 578 P.2d 899], internal citation omitted.)
•“Unlike subrogation, in which the claimant stands in the shoes of the injured party, ‘The basis for the remedy of equitable indemnity is restitution. “[O]ne person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.” [Citations.] [¶] California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each.’ The test for indemnity is thus whether the indemnitor and indemnitee jointly caused the plaintiff’s injury.” (AmeriGas Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 989 [109 Cal.Rptr.3d 686], internal citation omitted.)
•“[C]omparative equitable indemnity includes the entire range of possible apportionments, from no right to any indemnity to a right of complete indemnity. Total indemnification is just one end of the spectrum of comparative equitable indemnification.” (Far West Financial Corp. v. D & S Co., Inc. (1988) 46 Cal.3d 796, 808 [251 Cal.Rptr. 202, 760 P.2d 399], internal quotation marks and citation omitted.)
•“[W]e conclude that a cause of action for equitable indemnity is a legal action seeking legal relief. As such, the [defendant] was entitled to a jury trial.” (Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 698 [59 Cal.Rptr.2d 303].)
•“[W]e hold that … the comparative indemnity doctrine may be utilized 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].)
•“[Indemnitor]’s liability was not based on its independent acts or omissions, but was based solely on its role as retailer of [manufacturer]’s defectively designed product. As a matter of fundamental fairness, a manufacturer … cannot seek equitable indemnification from a retailer found not to have been negligent or independently at fault, but found to be liable solely under the strict liability theory of design defect. Under these limited circumstances the retailer is not ‘at fault’ within the meaning of a cause of action for equitable indemnification.” (Bailey, supra, 199 Cal.App.4th at p. 215.)
•For purposes of equitable indemnity, “it matters not whether the tortfeasors acted in concert to create a single injury, or successively, in creating distinct and divisible injury.” (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1203 [213 Cal.Rptr. 781].)
•“[W]e conclude comparative fault principles should be applied to intentional torts, at least to the extent that comparative equitable indemnification can be applied between concurrent intentional tortfeasors.” (Baird v. Jones (1993) 21 Cal.App.4th 684, 690 [27 Cal.Rptr.2d 232].)
•Statutes may limit one’s right to recover comparative indemnity. (See, e.g., E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1259 [258 Cal.Rptr. 783] [Lab. Code, § 4558(d) provides that there is no right of action for comparative indemnity against an employer for injuries resulting from the removal of an operation guard from a punch press].)