CACI 407 Comparative Fault of Decedent
California Civil Jury Instructions CACI
407 Comparative Fault of Decedent
[Name of defendant] claims that [name of decedent]’s own negligence contributed to [his/her/nonbinary pronoun] death. To succeed on this claim, [name of defendant] must prove both of the following:
1.That [name of decedent] was negligent; and
2.That [name of decedent]’s negligence was a substantial factor in causing [his/her/nonbinary pronoun] death.
If [name of defendant] proves the above, [name of plaintiff]’s damages are reduced by your determination of the percentage of [name of decedent]’s responsibility. I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction should not be given absent evidence that the decedent was negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
Sources and Authority
•“[P]rinciples of comparative fault and equitable indemnification support an apportionment of liability among those responsible for the loss, including the decedent, whether it be for personal injury or wrongful death.” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 285 [87 Cal.Rptr.2d 222, 980 P.2d 927].)
•“[I]n wrongful death actions, the fault of the decedent is attributable to the surviving heirs whose recovery must be offset by the same percentage. [Citation.]” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1395 [273 Cal.Rptr. 231].)