California Civil Jury Instructions (CACI)

2942. Damages for Death of Employee

If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for this loss. 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 these damages. You must not speculate or guess in awarding damages.

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

1. The reasonable value of money, goods, and services that [name of decedent] would have provided [name of plaintiff] during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter;

2. [The monetary value of [name of minor child]'s loss of any care, attention, instruction, training, advice, and guidance from [name of decedent];]

3. Any pain and suffering that [name of decedent] experienced as a result of [his/her] injuries; and

4. The reasonable expense of medical care and supplies reasonably needed by and actually provided to [name of decedent].

Do not include in your award any compensation for [name of plaintiff]'s grief, sorrow, or mental anguish or the loss of [name of decedent]'s society or companionship.

In deciding a person's life expectancy, consider, among other factors, that person's health, habits, activities, lifestyle, and occupation. Life expectancy tables are evidence of a person's life expectancy but are not conclusive.

Any award you make for the value of any money and services that you decide [name of decedent] would have provided [name of

plaintiff] in the future should be reduced to present value. Any award you make for the value of any money and services you decide [name of decedent] would have provided [name of plaintiff] between the date of [his/her] death on [date of death] and the present should not be reduced to present value.

[In computing damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]

Directions for Use

The list of damages is optional and is intended to include those items of damage for which recovery is commonly sought in the ordinary FELA case. This list is not intended to exclude any item of damages that is supported in evidence and the authorities. There must be evidence to support each item listed.

The items of damage set forth in items number 3 and 4 are recoverable by the personal representative on behalf of the spouse, children, or parents of the decedent, if supported by the evidence.

See also CACI No. 3904, Present Cash Value, and CACI No. 3932, Life Expectancy.

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 such carrier, or by reason of any defect or insufficiency, due to its egligence, 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]."

45 U.S.C. section 59 provides: "Any right of action given by this chapter to a person suffering injury shall survive 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, but in such cases there shall be only one recovery for the same injury."

"[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.)

"The elements which make up the total damage resulting to a minor child from a parent's death may be materially different from a parent's examination where the beneficiary is a spouse or collateral dependent relative; but in every instance the award must be based upon money values, the amount of which can be ascertained only upon a view of the peculiar facts presented." (Norfolk & Western Railroad Co. v. Holbrook (1915) 235 U.S. 625, 629 [35 S.Ct. 143, 59 L.Ed. 392], internal citations omitted.)

"In the present case there was testimony concerning the personal qualities of the deceased and the interest which he took in his family. It was proper, therefore, to charge that the jury might take into consideration the care, attention, instruction, training, advice, and guidance which the evidence showed he reasonably might have been expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed." (Holbrook, supra, 235 U.S. at p. 629.)

" 'In the absence of evidence that an adult child is either dependent upon or had any reasonable grounds for expecting any pecuniary benefit from a continuance of the decedent's life, a recovery on behalf f such child is excluded.' " (Kozar v. Chesapeake & Ohio Railway Co. (6th Cir. 1971) 449 F.2d 1238, 1243, internal citation omitted.)

"[T]he conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived." (St. Louis, I.M. & S. Railway Co. v. Craft (1915) 237 U.S. 648, 658 [35 S.Ct. 704, 59 L.Ed. 1160].)

"Funeral expenses . . . may not be included in damages awarded in FELA actions." (Dubose v. Kansas City Southern Railway Co. (5th Cir. 1984) 729 F.2d 1026, 1033.)

"In a wrongful-death action under the FELA, the measure of recovery is 'the damages . . . [that] flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received . . . .' The amount of money that a wage earner is able to contribute to the support of his family is unquestionably affected by the amount of the tax he must pay to the Federal Government. It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner's income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies." (Norfolk & Western Railway Co. v. Liepelt (1980) 444 U.S. 490, 493- 494 [100 S.Ct. 755, 62 L.Ed.2d 689], internal citation omitted.)

"[T]he damages are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries." (Michigan Central Railroad Co. v. Vreeland (1913) 227 U.S. 59, 70 [33 S.Ct. 192, 57 L.Ed. 417].)

"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].)

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 rought 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 ealt with either by the Court instructing the jury that the amount of enefits 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)