California Jury Instruction CACI 406 Apportionment of Responsibility

406. Apportionment of Responsibility

[[Name of defendant] claims that the [negligence/fault] of [insert name(s) or description(s) of nonparty tortfeasor(s)] [also] contributed to [name of plaintiff]’s harm. To succeed on this claim, [name of defendant] must prove both of the following:

1. That [insert name(s) or description(s) of nonparty tortfeasor(s)] [was/were] [negligent/at fault]; and
2. That the [negligence/fault] of [insert name(s) or description(s) of nonparty tortfeasor(s)] was a substantial factor in causing [name of plaintiff]’s harm.]

If you find that the [negligence/fault] of more than one person including [name of defendant] [and] [[name of plaintiff]/ [and] [name(s) or description(s) of nonparty tortfeasor(s)]] was a substantial factor in causing [name of plaintiff]’s harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100 percent.

You will make a separate finding of [name of plaintiff]’s total damages, if any. In determining an amount of damages, you should not consider any person’s assigned percentage of responsibility.

[“Person” can mean an individual or a business entity.]

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New September 2003; Revised June 2006, December 2007, December 2009, June 2011

Nakase Wade | California Business Lawyers & Corporate Lawyers

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Directions for Use

This instruction is designed to assist the jury in completing CACI No. VF-402, Negligence—Fault of Plaintiff and Others at Issue, which must be given in a multiple-tortfeasor case to determine comparative fault. VF-402 is designed to compare the conduct of all defendants, the conduct of the plaintiff, and the conduct of any nonparty tortfeasors.

Throughout, select “fault” if there is a need to allocate responsibility between tortfeasors whose alleged liability is based on conduct other than negligence, e.g., strict products liability.

Include the first paragraph if the defendant has presented evidence that the conduct of one or more nonparties contributed to the plaintiff’s harm. (See Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 33 [117 Cal.Rptr.3d 791] [defendant has burden to establish concurrent or alternate causes].) “Nonparties” include the universe of tortfeasors who are not present at trial, including defendants who settled before trial and nonjoined alleged tortfeasors. (Dafonte v. Up-Right (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the defendant concedes some degree of liability.

If the plaintiff’s comparative fault is also at issue, give CACI No. 405, Comparative Fault of Plaintiff, in addition to this instruction.

Include the last paragraph if any of the defendants or others alleged to have contributed to the plaintiff’s harm is not an individual.

Sources and Authority

• Proposition 51. Civil Code section 1431.2.
• “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only ‘in proportion to the amount of negligence attributable to the person recovering.’ ” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “In light of Li, however, we think that the long-recognized common law equitable indemnity doctrine should be modified to permit, in appropriate cases, a right of partial indemnity, under which liability among multiple tortfeasors may be apportioned on a comparative negligence basis Such a doctrine conforms to Li’s objective of establishing ‘a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.’ ” (American Motorcycle Assn., supra, 20 Cal.3d at p. 583.)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine “is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’ ” [Citation.]’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285 [164 Cal.Rptr.3d 112].)
• “[A] ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff’s injuries, not merely that of ‘defendant[s]’ present in the lawsuit.” (Dafonte, supra, 2 Cal.4th at p. 603, original italics.)
• “The proposition that a jury may apportion liability to a nonparty has been adopted in the Judicial Council of California Civil Jury Instructions (CACI) special verdict form applicable to negligence cases. (See CACI Verdict Form 402 and CACI Instruction No. 406 [‘[Verdict Form] 402 is designed to compare the conduct of all defendants, the conduct of the plaintiff, and the conduct of any nonparty tortfeasors. [H . . . [H . . . “Nonparties” include the universe of tortfeasors who are not present at trial, including defendants who settled before trial and nonjoined alleged tortfeasors.’].” (Vollaro v. Lispi (2014) 224 Cal.App.4th 93, 100 fn. 5 [168 Cal.Rptr.3d 323], internal citation omitted.)
• “[U]nder Proposition 51, fault will be allocated to an entity that is immune from paying for its tortious acts, but will not be allocated to an entity that is not a tortfeasor, that is, one whose actions have been declared not to be tortious.” (Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d 695], original italics.)
• “A defendant bears the burden of proving affirmative defenses and indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries. Placing the burden on defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d 336].)
• “[T]here must be substantial evidence that a nonparty is at fault before damages can be apportioned to that nonparty.” (Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763, 785 [180 Cal.Rptr.3d 479].)
• “When a defendant is liable only by reason of a derivative nondelegable duty arising from his status as employer or landlord or vehicle owner or coconspirator, or from his role in the chain of distribution of a single product in a products liability action, his liability is secondary (vicarious) to that of the actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v. Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics, internal citations omitted.)
• “Under the doctrine of strict products liability, all defendants in the chain of distribution are jointly and severally liable, meaning that each defendant can be held liable to the plaintiff for all damages the defective product caused.” (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [169 Cal.Rptr.3d 208].)
• Proposition 51 does not apply in a strict products liability action when a single defective product produced a single injury to the plaintiff. That is, all the defendants in the stream of commerce of that single product remain jointly and severally liable…… [I]n strict products liability asbestos exposure actions, . . . Proposition 51 applies when there are multiple products that caused the plaintiff’s injuries and there is evidence that provides a basis to allocate fault for noneconomic damages between the defective products.” (Romine, supra, 224 Cal.App.4th at pp. 1011-1012, internal citations omitted.)
• “[T]he jury found that defendants are parties to a joint venture. The incidents of a joint venture are in all important respects the same as those of a partnership. One such incident of partnership is that all partners are jointly and severally liable for partnership obligations, irrespective of their individual partnership interests. Because joint and several liability arises from the partnership or joint venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni (2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citationsomitted.)

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Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 156, 158-163, 167, 168, 171, 172, 176

Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And Judgment, fl 9:662.3 (The Rutter Group)

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52-1.59

1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the Risk, and Related Defenses, §§ 4.04-4.03, 4.07-4.08 (Matthew Bender)

5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03 (Matthew Bender)

4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender) California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)

25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution, § 300.61 (Matthew Bender)

11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04 et seq. (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380 (Matthew Bender)