California Civil Jury Instructions (CACI)

2941. Introduction to Damages for Personal Injury

If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant], you also must decide how much money will reasonably compensate [name of plaintiff] for the harm. This compensation is called "damages."

[Name of plaintiff] must prove the amount of [his/her] damages. However, [name of plaintiff] does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.

The following are the specific items of damages claimed by [name of plaintiff]:

Directions for Use

See the Damages series (CACI No. 3900 et seq.) for instructions on specific items of damages and other topics involving damages, such as the concept of present cash value, mitigation of damages, and the effect of preexisting conditions. Care should be taken to verify that the wording of these instructions is consistent with federal law regarding damages under FELA.

Sources and Authority

45 U.S.C. section 51 provides: "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of uch carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. [¶] Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this [chapter] . . . ."

"[I]t is settled that the propriety of jury instructions concerning the measure of damages in an FELA action is an issue of 'substance' determined by federal law." (St. Louis Southwestern Railway Co. v. Dickerson (1985) 470 U.S. 409, 411 [105 S.Ct. 1347, 84 L.Ed.2d 303], internal citation omitted.)

"A FELA plaintiff is entitled to recover for all past, present and probable future harm attributable to the defendant's tortious conduct, including pain and suffering and mental anguish." (Marchica v. Long Island Railroad Co. (2d Cir. 1994) 31 F.3d 1197, 1207.)

"A FELA plaintiff, upon proof of employer liability, may recover damages for loss of earnings, medical expenses and pain and suffering. The burden rests upon the plaintiff to establish by sufficient evidence a factual basis for the amount of damages sought." (Williams v. Missouri Pacific Railroad Co. (10th Cir. 1993) 11 F.3d 132, 135, internal citations omitted.)

"The Act was not intended to supersede or pre-empt the common law in railroad employee injury cases, but merely to modify it in . . . specific particulars. Thus, the Act contains no provisions regulating the measure of damages recoverable in an action to which the FELA applies, and courts have since held that the absence in the Act of specific provisions governing the measure of damages in FELA actions does not affect their availability as before the Act." (Hall v. Minnesota Transfer Railway Co. (D.C.Minn. 1971) 322 F.Supp. 92, 94.)

"The seaman may thus recover for all of his pecuniary damages including such damages as the cost of employing someone else to perform those domestic services that he would otherwise have been able to render but is now incapable of doing." (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723 [Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp. (1990) 498 U.S. 19, 32-33 [111 S.Ct. 317, 112 L.Ed.2d 275].)

"Although our decision in Jones & Laughlin makes clear that no single method for determining present value is mandated by federal law and that the method of calculating present value should take into account inflation and other sources of wage increases as well as the rate of interest, it is equally clear that an utter failure to instruct the jury that present value is the proper measure of a damages award is error." (St. Louis Southwestern Railway, supra, 470 U.S. at p. 412.)

"Damages for the injury of loss of earning capacity may be recovered in a FELA action. 'Earning capacity means the potential for earning money in the future. . . .' The appropriate measure is the present value of the total amount of future earnings." (Bissett v. Burlington Northern Railroad Co. (8th Cir. 1992) 969 F.2d 727, 731, internal citations omitted.)

"[W]e see no reason, and defendant has presented us with no reason, to create in FELA cases an exception to the general rule that the defendant has the burden of proving that the plaintiff could, with reasonable effort, have mitigated his damages." (Jones v. Consolidated Rail Corp. (6th Cir. 1986) 800 F.2d 590, 594.)

"The federal and state courts have held with virtual unanimity over more than seven decades that prejudgment interest is not available under the FELA." (Monessen Southwestern Railway Co. v. Morgan (1988) 486 U.S. 330, 338 [108 S.Ct. 1837, 100 L.Ed.2d 349].)

"We therefore reaffirm the conclusion . . . that punitive damages are unavailable under the FELA." (Wildman v. Burlington Northern Railroad Co. (9th Cir. 1987) 825 F.2d 1392, 1395, internal citation omitted.)

"We have held specifically that the spouse of an injured railroad employee may not sue for loss of consortium under FELA." (Kelsaw v. Union Pacific Railroad Co. (9th Cir. 1982) 686 F.2d 819, 820, internal citation omitted.)

45 U.S.C. section 55 provides: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this [chapter], shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this [chapter], such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought."

"While at first glance the language of this provision seems broad enough to completely abrogate the common law collateral source rule, courts have limited the scope of the provision by focusing on the requirement that the covered payments be made 'on account of the injury.' Thus, the cases draw a distinction between payments emanating from a fringe benefit such as a retirement fund or a general hospital and medical insurance plan, and payments which the employer has undertaken voluntarily to indemnify itself against possible liabilities under the FELA." (Clark v. Burlington Northern, Inc. (8th Cir. 1984) 726 F.2d 448, 450, internal citation omitted.)

"A benefit may be exempt from setoff under the collateral source rule even though the employer is the sole source of the fund. The important consideration is the character of the benefits received, rather than whether the source is actually independent of the employer. Medical expenses paid for by insurance are exempt from setoff regardless of whether the employer paid one hundred percent of the insurance premiums. Courts have also ruled private disability retirement plans established by a collective bargaining agreement and covering both jobrelated and non-job-related illness and injury are exempt from setoff." (Clark, supra, 726 F.2d at pp. 450-451, footnote and internal citations omitted.)

"Generally, a tortfeasor need not pay twice for the damage caused, but he should not be allowed to set off compensation from a 'collateral source' against the amount he owes on account of his tort." (Russo v. Matson Navigation Co. (9th Cir. 1973) 486 F.2d 1018, 1020.)

"It is well established in this circuit that the purpose and nature of the insurance benefits are controlling. Here, the purpose of the insurance coverage, as expressly described in the collective bargaining agreement, is to indemnify the employer against FELA liability. It follows that setoff should be allowed and that the benefits in this case should not be regarded as a collateral source." (Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)

"The mechanics of handling the setoff provided by the plan may be dealt with either by the Court instructing the jury that the amount of benefits provided by the GA-23000 contract must be set off against any damages awarded or by the Court as a matter of law reducing damages awarded by the jury." (Brice v. National Railroad Passenger Corp. (D.Md. 1987) 664 F.Supp. 220, 224.)

(New September 2003)