CACI No. 2941. Introduction to Damages for Personal Injury

Judicial Council of California Civil Jury Instructions (2023 edition)

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2941.Introduction to Damages for Personal Injury
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] 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/nonbinary pronoun]
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
New September 2003
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 the FELA.
Sources and Authority
Federal Employers’ Liability Act. 45 U.S.C. section 51.
“[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.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.”
CACI No. 2941 FELA
“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 job-related 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.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.43, 485.44
(Matthew Bender)
FELA CACI No. 2941

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