OUJI-CIV No. 9.20

COMPARATIVE NEGLIGENCE: COUNTERCLAIM PLEAD — DEFINITION

As a part of [his/her] defense, [Defendant] first denies that any negligence on

[his/her] part was the direct caus e of the occurrence involved in this lawsuit and any

resulting injuries to [Plaintiff]. [Defendant] further contends that if, however, the jury

should find that [he/she] was negligent to some degree, then it is [his/her] contention that

[Plaintiff's] own negligence exceeded [Defendant's] negligence, so as to prevent any

recovery by [Plaintiff] in this lawsuit. To establish this defense, [Defendant] must show

by the greater weight of the evidence that [Plaintiff] was negligent and [his/her]

negligence was a direct cause of [his/her] injury.

As you have been previously advised in these instructions, by way of

counterclaim filed in this lawsuit, [Defendant] seeks to be awarded money damages from

[Plaintiff] because of this same occurrence. As a part of [his/ her] defense to

[Defendant's] counterclaim, [Plaintiff] first denies that any negligence on [his/her] part

was the direct cause of the occurrence and any resulting injuries to [Defendant].

[Plaintiff] further contends that if, however, the jury should find that [he/she] was

negligent to some degree, then it is [his/her] contention that [Defendant's] own

negligence exceeded [Plaintiff's] negligence, so as to prevent any recovery by

[Defendant] in this lawsuit. To establish this defense, [Plaintiff] must sho w by the greater

weight of the evidence that [Defendant] was negligent and [his/her] negligence was a

direct cause of [his/her] injury.

Under the law you are to compare the percentage (0% —100%) of negligence of

[Plaintiff], if any, with the percentage (0%—100%) of negligence of [Defendant], if any.

The law provides that [Defendant's] contributory negligence, which means the

negligence of [names of the Defendant counterclaimants], shall not bar recovery of

OUJI 3d (Rev. 2009) Chapter 9

damages on the counterclaims unless [his/her/their] negligence is of a greater degree,

established by percentage, than the negligence of [Plaintiff].

The percentage (0% —100%) of negligence you find for each party should be

stated in the appropriate verdict form. The verdict forms have been color –coded to assist

you.