contributory negligence doctrine in California

2026Our Supreme Court long ago abrogated the doctrine of contributory negligence in California (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 , 828–829), and even before that, it was not applicable to intentional torts (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 ; Tate, supra, 180 Cal.App.2d at pp. 907–908).

2025First, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 , the court adopted the comparative negligence doctrine to replace the contributory negligence rule, so that a contributorily negligent plaintiff was no longer barred recovery, “ ‘but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.’ ” (Evangeletos, supra, 44 Cal.3d at p. 1197 .) Second, in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , the court retained joint and several liability, but allowed defendants to bring other tortfeasors into the 7 action t

2025First, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 , the court adopted the comparative negligence doctrine to replace the contributory negligence rule, so that a contributorily negligent plaintiff was no longer barred recovery, “ ‘but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.’ ” (Evangeletos, supra, 44 Cal.3d at p. 1197 .) Second, in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , the court retained joint and several liability, but allowed defendants to bring other tortfeasors into the 7 action t

2020(American Motorcycle).) [¶] ‘In cases involving multiple tortfeasors, [this] principle . . . has commonly been expressed in terms of “joint and several liability.” ’ ” (Henry, at p. 448, quoting American Motorcycle, at p. 586.) “In American Motorcycle the Court concluded its adoption of principles of comparative negligence in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 . . . , which eliminated the all-or-nothing doctrine of contributory negligence, ‘does not warrant the abolition or contraction of the established “joint and several liability” doctrine; each tortfeasor whose negligence is a proxi

2007Li abrogated the contributory negligence doctrine, which barred recovery if the plaintiffs conduct contributed as a legal cause of injury in any degree, and adopted the comparative negligence doctrine, which reduces the plaintiffs recovery only in proportion to the plaintiffs comparative fault. ( Id. at pp. 828-829, 119 Cal.Rptr. 858 , 532 P.2d 1226 .) Daly held specifically that In an action for strict products liability, the plaintiffs recovery should be reduced in proportion to the plaintiffs comparative fault. ( Daly, supra, at pp. 736-737 , 144 Cal.Rptr. 380 , 575 P.2d 1162 .) Daly stated

2007Li abrogated the contributory negligence doctrine, which barred recovery if the plaintiffs conduct contributed as a legal cause of injury in any degree, and adopted the comparative negligence doctrine, which reduces the plaintiffs recovery only in proportion to the plaintiffs comparative fault. ( Id. at pp. 828-829, 119 Cal.Rptr. 858 , 532 P.2d 1226 .) Daly held specifically that In an action for strict products liability, the plaintiffs recovery should be reduced in proportion to the plaintiffs comparative fault. ( Daly, supra, at pp. 736-737 , 144 Cal.Rptr. 380 , 575 P.2d 1162 .) Daly stated

2025(See Gilman, supra, 231 Cal.App.3d at pp. 127–128; Mayes, supra, 139 Cal.App.4th at pp. 1101–1102.) A. Prior to the adoption of comparative negligence principles in the mid- 1970s, the contributory negligence rule meant that a jury’s finding that a plaintiff “was at all negligent, no matter how slight,” in bringing about the injury would preclude the plaintiff “from obtaining any recovery whatsoever.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1196 (Evangelatos).) For defendants, by contrast, the joint and several liability rule meant that a finding of even minimal negligence render

2025First, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 , the court adopted the comparative negligence doctrine to replace the contributory negligence rule, so that a contributorily negligent plaintiff was no longer barred recovery, “ ‘but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.’ ” (Evangeletos, supra, 44 Cal.3d at p. 1197 .) Second, in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , the court retained joint and several liability, but allowed defendants to bring other tortfeasors into the 7 action t

1975(Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162 [ 265 P.2d 904 ].) The evidence clearly shows that plaintiff did not use ordinary care, and that the court properly instructed on the defense of contributory negligence. *943 As with the doctrine of assumption of risk, plaintiff contends that the contributory negligence defense should be abolished.

1975(Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162 [ 265 P.2d 904 ].) The evidence clearly shows that plaintiff did not use ordinary care, and that the court properly instructed on the defense of contributory negligence. *943 As with the doctrine of assumption of risk, plaintiff contends that the contributory negligence defense should be abolished.

2024In their separate statement of undisputed material facts, Defendants asserted that Andersen concluded Canela was “the sole contributing factor to the incident.” In fact, in the excerpts that Defendants submitted, Andersen did not testify about other potential contributing factors and did not even use the word “sole.” 13 13 Cal.3d 804, 829 [“[I]n all actions for negligence resulting in injury to person or property, the contributory negligence shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”]; se

2024In their separate statement of undisputed material facts, Defendants asserted that Andersen concluded Canela was “the sole contributing factor to the incident.” In fact, in the excerpts that Defendants submitted, Andersen did not testify about other potential contributing factors and did not even use the word “sole.” 13 13 Cal.3d 804, 829 [“[I]n all actions for negligence resulting in injury to person or property, the contributory negligence shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”]; se

1982Co., 32 Cal.App.2d 462, 467 [ 90 P.2d 94 ]; Henshaw v. Belyea, 220 Cal. 458, 468 [ 31 P.2d 348 ].)” Fifteen years after Bilyeu, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], our Supreme Court abol ished the defense of assumption of risk to the extent that it is merely a variant of the former doctrine of contributory negligence, subsuming it under the general process of assessing liability in proportion to negligence.

1982Co., 32 Cal.App.2d 462, 467 [ 90 P.2d 94 ]; Henshaw v. Belyea, 220 Cal. 458, 468 [ 31 P.2d 348 ].)” Fifteen years after Bilyeu, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], our Supreme Court abol ished the defense of assumption of risk to the extent that it is merely a variant of the former doctrine of contributory negligence, subsuming it under the general process of assessing liability in proportion to negligence.

1981Transportation Co. (1977) 73 Cal.App.3d 737, 746 [ 140 Cal.Rptr. 905 ]; relying on Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 274 [ 32 Cal.Rptr. 193 , 383 P.2d 777 ].) It cannot be said, however, that plaintiff assumed the risk of being raped.

1981Transportation Co. (1977) 73 Cal.App.3d 737, 746 [ 140 Cal.Rptr. 905 ]; relying on Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 274 [ 32 Cal.Rptr. 193 , 383 P.2d 777 ].) It cannot be said, however, that plaintiff assumed the risk of being raped.

1976The plaintiff's ordinary negligence does not bar his recovery, but his voluntary and unreasonable encountering of known danger does. ( Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 672 [ 117 Cal. Rptr. 1 , 527 P.2d 353 ]; Luque v. McLean (1972) 8 Cal.3d 136, 145 [ 104 Cal. Rptr. 443 , 501 P.2d 1163 ].) Dean Prosser's "kernel" of comment, critical of the former contributory rule in negligence cases, is applicable to the existing rule in strict liability cases.

1976The plaintiff's ordinary negligence does not bar his recovery, but his voluntary and unreasonable encountering of known danger does. ( Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 672 [ 117 Cal. Rptr. 1 , 527 P.2d 353 ]; Luque v. McLean (1972) 8 Cal.3d 136, 145 [ 104 Cal. Rptr. 443 , 501 P.2d 1163 ].) Dean Prosser's "kernel" of comment, critical of the former contributory rule in negligence cases, is applicable to the existing rule in strict liability cases.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

1967(Hazelett v. Miller, 115 Cal.App.2d 801, 804-805 [252 P.2d 997]; Fuentes v. Panella, 120 Cal.App.2d 175, 182 [ 260 P.2d 853 ] ; Kyle v. Stone, 234 Cal.App.2d 286, 289-290 [ 44 Cal.Rptr. 390 ].) Without citing authority, plaintiff asserts the court erred in refusing an instruction on res ipsa loquitur.

2015(Puffinbarger v. Day (1962) 207 Cal.App.2d 540 [ 24 Cal.Rptr. 533 ] [in wrongful death action, a jury instruction on parent’s contributory negligence was appropriate *626 where mother did not follow doctor’s instructions regarding care of daughter]; Dodds v. Stellar (1946) 77 Cal.App.2d 411 [ 175 P.2d 607 ] [whether plaintiff with finger burned by X-rays used due diligence in deciding not to undergo amputation of finger when first suggested by doctor was a question for the jury; finding for plaintiff upheld].) In addition, in Barton v. Owen (1977) 71 Cal.App.3d 484 [ 139 Cal.Rptr. 494 ], the c

2015(Puffinbarger v. Day (1962) 207 Cal.App.2d 540 [ 24 Cal.Rptr. 533 ] [in wrongful death action, a jury instruction on parent’s contributory negligence was appropriate *626 where mother did not follow doctor’s instructions regarding care of daughter]; Dodds v. Stellar (1946) 77 Cal.App.2d 411 [ 175 P.2d 607 ] [whether plaintiff with finger burned by X-rays used due diligence in deciding not to undergo amputation of finger when first suggested by doctor was a question for the jury; finding for plaintiff upheld].) In addition, in Barton v. Owen (1977) 71 Cal.App.3d 484 [ 139 Cal.Rptr. 494 ], the c

1978(E.g., Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 370 [ 99 Cal. Rptr. 29 , 491 P.2d 821 ].) For example, a contributory negligence instruction cannot be given unless the record shows that some negligence on the part of the plaintiff proximately caused his or her injury. ( Witt v. Jackson (1961) 57 Cal.2d 57, 68 [ 17 Cal. Rptr. 369 , 366 P.2d 641 ]; Western Salt Co. v. City of Newport Beach (1969) 271 Cal. App.2d 397, 402 [ 76 Cal. Rptr. 322 ].) Thus, it is error in medical malpractice cases to give BAJI No. 6.28 in the absence of some evidence that the injured patient's acts or omiss

1978(E.g., Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 370 [ 99 Cal. Rptr. 29 , 491 P.2d 821 ].) For example, a contributory negligence instruction cannot be given unless the record shows that some negligence on the part of the plaintiff proximately caused his or her injury. ( Witt v. Jackson (1961) 57 Cal.2d 57, 68 [ 17 Cal. Rptr. 369 , 366 P.2d 641 ]; Western Salt Co. v. City of Newport Beach (1969) 271 Cal. App.2d 397, 402 [ 76 Cal. Rptr. 322 ].) Thus, it is error in medical malpractice cases to give BAJI No. 6.28 in the absence of some evidence that the injured patient's acts or omiss

1997Generally, one singled out for suit could not join other responsible parties, and the target defendant’s right to contribution or indemnity from other concurrent tortfeasors was sharply restricted. [Citations.]” (DaFonte v. Up-Right, Inc. (DaFonte) (1992) 2 Cal.4th 593, 597-598 [ 7 Cal.Rptr.2d 238 , 828 P.2d 140 ].) In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], the California Supreme Court “eliminated the all-or-nothing doctrine of contributory negligence.

1997Generally, one singled out for suit could not join other responsible parties, and the target defendant’s right to contribution or indemnity from other concurrent tortfeasors was sharply restricted. [Citations.]” (DaFonte v. Up-Right, Inc. (DaFonte) (1992) 2 Cal.4th 593, 597-598 [ 7 Cal.Rptr.2d 238 , 828 P.2d 140 ].) In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], the California Supreme Court “eliminated the all-or-nothing doctrine of contributory negligence.

1981(See, generally, Prosser, Law of Torts, (4th ed. 1971) pp. 442-447.) The defense of assumption of risk has been abolished in California “to the extent that it is merely a variant of the former doctrine of contributory negligence .. ..” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ]; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734-735 [ 144 Cal.Rptr. 380, 575 , P.2d 1162].) However, “an ‘unreasonable’ assumption of risk is but a variant of contributory negligence. [Citation.]” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51,

1981(See, generally, Prosser, Law of Torts, (4th ed. 1971) pp. 442-447.) The defense of assumption of risk has been abolished in California “to the extent that it is merely a variant of the former doctrine of contributory negligence .. ..” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ]; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734-735 [ 144 Cal.Rptr. 380, 575 , P.2d 1162].) However, “an ‘unreasonable’ assumption of risk is but a variant of contributory negligence. [Citation.]” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51,

1985Consequently, the effect of different jurisdictions’ comparative negligence statutes on the doctrine of contributory negligence in the violation of statutes different from the one at bench “shed[s] little light.” (Sorensen v. Allred (1980) 112 Cal.App.3d 717, 725 [ 169 Cal.Rptr. 441 , 10 A.L.R.4th 937 ].) Prior to the 1971 decision in Vesely , California courts did not have occasion to consider whether a statute prohibiting the delivery of alcohol to minors was intended to shift the responsibility to the offending defendant because the consumption, and not the furnishing, of alcohol was deemed

1985Consequently, the effect of different jurisdictions’ comparative negligence statutes on the doctrine of contributory negligence in the violation of statutes different from the one at bench “shed[s] little light.” (Sorensen v. Allred (1980) 112 Cal.App.3d 717, 725 [ 169 Cal.Rptr. 441 , 10 A.L.R.4th 937 ].) Prior to the 1971 decision in Vesely , California courts did not have occasion to consider whether a statute prohibiting the delivery of alcohol to minors was intended to shift the responsibility to the offending defendant because the consumption, and not the furnishing, of alcohol was deemed

1976If the statute is designed merely to establish a standard of ordinary care for the plaintiff's protection against a risk, the plaintiff's contributory negligence may be asserted; if the statute is designed to protect persons in a state of personal helplessness, it may not. ( Alber v. Owens, supra, 66 Cal.2d at pp. 797-798; Boyles v. Hamilton, supra, 235 Cal. App.2d at pp. 496-497; 4 Witkin, Summary of Cal. Law, Torts, § 687, pp. 2973-2974; Prosser on Torts (4th ed.) pp. 425-426; see Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 770, fn. 14 [ 91 Cal. Rptr. 745 , 478 P.2d 465 ].) Child labor laws

1976If the statute is designed merely to establish a standard of ordinary care for the plaintiff's protection against a risk, the plaintiff's contributory negligence may be asserted; if the statute is designed to protect persons in a state of personal helplessness, it may not. ( Alber v. Owens, supra, 66 Cal.2d at pp. 797-798; Boyles v. Hamilton, supra, 235 Cal. App.2d at pp. 496-497; 4 Witkin, Summary of Cal. Law, Torts, § 687, pp. 2973-2974; Prosser on Torts (4th ed.) pp. 425-426; see Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 770, fn. 14 [ 91 Cal. Rptr. 745 , 478 P.2d 465 ].) Child labor laws

2026As for superseding cause, this is an affirmative defense that, if applicable, should have been presented to the jury as a question of fact. 7 (Landeros v. Flood (1976) 17 Cal.3d 399, 411 [foreseeability of intervening act is ordinarily a factual question for trier of fact in deciding superseding cause defense].) Indeed, defendants requested a modified version of CACI No. 432 on superseding cause as an affirmative defense based on Wade’s drunk driving, and they also argued superseding cause as a defense in their motion for nonsuit at the close of plaintiffs’ case.

2023(Consumer Cause, supra, 91 Cal.App.4th at p. 467 [summary judgment “ ‘must be denied’ ” if defendant fails to show that undisputed facts support “ ‘ “each element of the affirmative defense.” ’ ”].) 17

2006Of course, at the time the doctrine developed, common law precepts precluded any attempt to ascertain comparative fault; as a consequence, equitable indemnity, like the contributory negligence doctrine, developed as an all-or-nothing proposition." ( American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , 593 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ].) However, in American Motorcycle the Supreme Court concluded that the rationale that prompted abandonment of the rule precluding recovery by a contributorily negligent plaintiff in favor of a doctrine of comparative fault "applies equally to

2006Of course, at the time the doctrine developed, common law precepts precluded any attempt to ascertain comparative fault; as a consequence, equitable indemnity, like the contributory negligence doctrine, developed as an all-or-nothing proposition." ( American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , 593 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ].) However, in American Motorcycle the Supreme Court concluded that the rationale that prompted abandonment of the rule precluding recovery by a contributorily negligent plaintiff in favor of a doctrine of comparative fault "applies equally to