California Civil Jury Instructions (CACI) (2017)

3103. Neglect - Essential Factual Elements (Welf. & Inst. Code, § 15610.57)

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3103.Neglect—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.57)
[Name of plaintiff] claims that [he/she/[name of decedent]] was neglected
by [[name of individual defendant]/ [and] [name of employer defendant]] in
violation of the Elder Abuse and Dependent Adult Civil Protection Act.
To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [[name of individual defendant]/[name of employer
defendant]’s employee] had care or custody of [name of plaintiff/
decedent];
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] while [he/she] was in [[name of defendant]’s/
[name of employer defendant]’s employee’s] care or custody;
3. That [[name of individual defendant]/[name of employer
defendant]’s employee] failed to use the degree of care that a
reasonable person in the same situation would have used in
[insert one or more of the following:]
3. [assisting in personal hygiene or in the provision of food,
clothing, or shelter;]
3. [providing medical care for physical and mental health needs;]
3. [protecting [name of plaintiff/decedent] from health and safety
hazards;]
3. [preventing malnutrition or dehydration;]
3. [insert other grounds for neglect;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, June 2006, October 2008
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder neglect, or by the
survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage), in the Damages series.
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If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3104,
Neglect—Enhanced Remedies Sought, in addition to this instruction. (See Welf. &
Inst. Code, § 15657.)
If the individual responsible for the neglect is a defendant in the case, use “[name
of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
This instruction is not intended for cases involving professional negligence against
health-care providers as define by the California Medical Injury Compensation
Reform Act of 1975 (MICRA) (see Welf. & Inst. Code, § 15657.2, Civ. Code,
§ 3333.2(c)(2)).
The instructions in this series are not intended to cover every circumstance in
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined Welfare and Institutions Code section 15610.07.
“Dependent Adult” Defined Welfare and Institutions Code section 15610.23.
• “Elder” Defined Welfare and Institutions Code section 15610.27.
• “Neglect” Defined Welfare and Institutions Code section 15610.57.
• Claims for Professional Negligence Excluded. Welfare and Institutions Code
section 15657.2.
• “It is true that statutory elder abuse includes ‘neglect as define in Section
15610.57,’ which in turn includes negligent failure of an elder custodian ‘to
provide medical care for [the elder’s] physical and mental health needs.’ . . .
‘[N]eglect’ within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from ‘professional negligence.’
As used in the Act, neglect refers not to the substandard performance of
medical services but, rather, to the ‘failure of those responsible for attending to
the basic needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.’ Thus, the
statutory definitio of ‘neglect’ speaks not of the undertaking of medical
services, but of the failure to provide medical care.” (Covenant Care, Inc. v.
Superior Court (2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290],
original italics, internal citations omitted.)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
CACI No. 3103 ELDER ABUSE AND DEPENDENT ADULT PROTECTION
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vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “[T]he statutory definitio of neglect set forth in the firs sentence of Welfare
and Institutions Code section 15610.57 is substantially the same as the ordinary
definitio of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc.
(2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
• “The Act was expressly designed to protect elders and other dependent adults
who ‘may be subjected to abuse, neglect, or abandonment . . . .’ Within the
Act, two groups of persons who ordinarily assume responsibility for the ‘care
and custody’ of the elderly are identifie and defined health practitioners and
care custodians. A ‘health practitioner’ is define in section 15610.37 as a
‘physician and surgeon, psychiatrist, psychologist, dentist, . . .’ etc., who ‘treats
an elder . . . for any condition.’ ‘Care custodians,’ on the other hand, are
administrators and employees of public and private institutions that provide
‘care or services for elders or dependent adults,’ including nursing homes,
clinics, home health agencies, and similar facilities which house the elderly. The
Legislature thus recognized that both classes of professionals—health
practitioners as well as care custodians—should be charged with responsibility
for the health, safety and welfare of elderly and dependent adults.” (Mack v.
Soung (2000) 80 Cal.App.4th 966, 974 [95 Cal.Rptr.2d 830], internal citations
omitted.)
• “[N]eglect as a form of abuse under the Elder Abuse Act refers ‘to the failure
of those responsible for attending to the basic needs and comforts of elderly or
dependent adults, regardless of their professional standing, to carry out their
custodial obligations.’ ” (Carter v. Prime Healthcare Paradise Valley LLC
(2011) 198 Cal.App.4th 396, 404 [129 Cal.Rptr.3d 895].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.70–2.71
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[3] (Matthew Bender)
ELDER ABUSE AND DEPENDENT ADULT PROTECTION CACI No. 3103
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