California Civil Jury Instructions (CACI)
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 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 defendant] 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 care or custody;
3. That [name of defendant] failed to use the degree of care that a reasonable person in the same situation would have used by [insert one or more of the following:]
[failing to assist in personal hygiene or in the provision of food, clothing, or shelter;]
[failing to provide medical care for physical and mental health needs;]
[failing to protect [name of plaintiff/decedent] from health and safety hazards;]
[failing to prevent malnutrition or dehydration;]
[insert other grounds for neglect;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm.
Directions for Use
This instruction is intended for plaintiffs who are not seeking survival damages for pain and suffering or attorney fees and costs. Plaintiffs who are seeking such damages should use CACI No. 3104, Neglect—Essential Factual Elements—Enhanced Remedies Sought—Individual or Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15610.57), or
CACI No. 3105, Neglect—Essential Factual Elements—Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, §§ 15657, 15610.57). The instructions in this series are not intended to cover every circumstance in which a plaintiff can bring a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act.
This instruction is not intended for cases involving professional negligence against health-care providers as defined by the California Medical Injury Compensation Reform Act of 1975 (MICRA) (see Welf. & Inst. Code, § 15657.2).
Sources and Authority
Welfare and Institutions Code section 15610.07 provides:
"Abuse of an elder or a dependent adult" means either of the following:
(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Welfare and Institutions Code section 15610.57 provides:
(a) "Neglect" means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
(2) The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she oluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.
"[T]he statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect." (Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
Welfare and Institutions Code section 15657.2 provides: "Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action."
Welfare and Institutions Code section 15610.27 provides: " 'Elder' means any person residing in this state, 65 years of age or older."
Welfare and Institutions Code section 15610.23 provides:
(a) "Dependent adult" means any person residing in this state between the ages of 18 and 64 years who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.
(b) "Dependent adult" includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
"The purpose of the [Elder Abuse Act] is essentially to protect a particularly 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].)
"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 identified and defined: health practitioners and care custodians. A 'health practitioner' is defined 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.)
California Elder Law Litigation (Cont.Ed.Bar 2003-2005) §§ 2.70-2.72
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly, § 5.33 (Matthew Bender)
(Revised December 2005)