CACI No. 2942. Damages for Death of Employee

Judicial Council of California Civil Jury Instructions (2023 edition)

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2942.Damages for Death of Employee
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] 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
[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 these damages. You must not speculate or guess in awarding
The following are the specific items of damages claimed by [name of
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/nonbinary pronoun] 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/nonbinary pronoun] 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
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/nonbinary
pronoun] 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.]
New September 2003; Revised December 2011
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. 3904A, Present Cash Value, CACI No. 3904B, Use of Present-
Value Tables, and CACI No. 3932, Life Expectancy.
Sources and Authority
Federal Employers’ Liability Act. Title 45 United States Code section 51.
Contracts Waiving FELA Liability Are Void. Title 45 United States Code section
FELA Right of Action Survives. Title 45 United States Code section 59.
“[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.” (Norfolk & Western Railroad
Co., 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 of such child is excluded.’ (Kozar
FELA CACI No. 2942
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 earners income tax is a relevant factor in
calculating the monetary loss suffered by his dependents when he dies.” (Norfolk
& W. Ry. 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].)
“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
CACI No. 2942 FELA
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
2 Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 21,
Jurisdiction, § 21.01[3] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.36,
485.43, 485.44 (Matthew Bender)
2943-2999. Reserved for Future Use
FELA CACI No. 2942

© Judicial Council of California.