CACI No. 1620. Negligence - Recovery of Damages for Emotional Distress - No Physical Injury - Direct Victim - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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1620.Negligence - Recovery of Damages for Emotional
Distress - No Physical Injury - Direct Victim - Essential Factual
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/
her/nonbinary pronoun] to suffer serious emotional distress. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was negligent;
2. That [name of plaintiff] suffered serious emotional distress; and
3. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
New September 2003; Revised June 2014, December 2014
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is not
a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “direct victim” case is one in which the plaintiff’s claim of emotional distress is
based on the violation of a duty that the defendant owes directly to the plaintiff.
(Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 [147
Cal.Rptr.3d 41].) The California Supreme Court has allowed plaintiffs to recover
damages as “direct victims” in only three types of factual situations: (1) the
negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d
868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a
disease that could potentially harm another (Molien, supra, 27 Cal.3d at p. 923); and
(3) the negligent breach of a duty arising out of a preexisting relationship (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).
The judge will normally decide whether a duty was owed to the plaintiff as a direct
victim. If the issue of whether the plaintiff is a direct victim is contested, a special
instruction with the factual dispute laid out for the jury will need to be drafted.
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
If the plaintiff witnesses the injury of another, use CACI No. 1621,
Negligence - Recovery of Damages for Emotional Distress - No Physical
Injury - Bystander - Essential Factual Elements. For instructions for use for
emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
No. 1622, Negligence - Recovery of Damages for Emotional Distress - No Physical
Injury - Fear of Cancer, HIV, or AIDS - Essential Factual Elements, and CACI No.
1623, Negligence - Recovery of Damages for Emotional Distress - No Physical
Injury - Fear of Cancer, HIV, or AIDS - Malicious, Oppressive, or Fraudulent
Conduct - Essential Factual Elements.
Elements 1 and 3 of this instruction could be modified for use in a strict products
liability case. A plaintiff may seek damages for the emotional shock of viewing the
injuries of another when the incident is caused by defendant’s defective product.
(Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587 [195 Cal.Rptr. 902].)
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien,supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
‘[The] negligent causing of emotional distress is not an independent tort but
the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty,
causation, and damages apply. Whether a defendant owes a duty of care is a
question of law. Its existence depends upon the foreseeability of the risk and
upon a weighing of policy considerations for and against imposition of
liability.’ (Marlene F. v. Affıliated Psychiatric Medical Clinic, Inc. (1989) 48
Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)
‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional
distress is not based upon witnessing an injury to someone else, but rather is
based upon the violation of a duty owed directly to the plaintiff.” (Ragland,
supra, 209 Cal.App.4th at p. 205.)
“[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional
distress damages result from a duty owed the plaintiff ‘that is “assumed by the
defendant or imposed on the defendant as a matter of law, or that arises out of a
relationship between the two.” (McMahon v. Craig (2009) 176 Cal.App.4th
1502, 1510 [97 Cal.Rptr.3d 555].)
“We agree that the unqualified requirement of physical injury is no longer
justifiable.” (Molien, supra, 27 Cal.3d at p. 928.)
“[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp.
“In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong,supra, 189 Cal.App.4th at p. 1378.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1138 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, 3:899 et seq. (The Rutter Group)
1 California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.03
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.31 et seq. (Matthew Bender)

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