California Civil Jury Instructions (CACI)
3105. Neglect - Essential Factual Elements—Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, §§ 15657, 15610.57)
[Name of plaintiff] claims [he/she/[name of decedent]] was neglected by [name of defendant]'s employee(s) in violation of the Elder Abuse and Dependent Adult Civil Protection Act and that [name of defendant] is responsible for that harm. To establish this claim, [name of plaintiff] must prove all of the following by clear and convincing evidence:
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 one or more of [name of defendant]'s employees 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 the employee[s] acted with [recklessness/malice/ oppression/fraud/];
5. That [name of plaintiff/decedent] was harmed;
6. That the employee['s][s'] conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm; and
7. [Insert one or more of the following:]
[That the employee[s] [was/were] [an] officer[s], [a] director[s], or [a] managing agent[s] of [name of defendant] acting in [a corporate/an employment] capacity;] [or]
[That an officer, a director, or a managing agent of [name of defendant] had advance knowledge of the unfitness of the employee[s] and employed [him/her/them] with a knowing disregard of the rights or safety of others;] [or]
[That an officer, a director, or a managing agent of [name of defendant] authorized the employee['s][s'] conduct;] [or]
[That an officer, a director, or a managing agent of [name of defendant] knew of the employee['s][s'] wrongful conduct and adopted or approved the conduct after it occurred.]
An employee is a "managing agent" if he or she exercises substantial independent authority and judgment in his or her corporate decision making such that his or her decisions ultimately determine corporate policy.
Directions for Use
This instruction is intended for plaintiffs who are seeking survival damages for pain and suffering and/or attorney fees and costs. Plaintiffs who are not seeking such damages should use CACI No. 3103, Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57). If the plaintiff is seeking damages against the employer and the employee, use CACI No. 3104, Neglect—Essential Factual Elements—Enhanced Remedies Sought—Individual or Individual and Employer Defendants (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.
There appears to be a misprint in Welfare and Institutions Code section 15657(b). The reference should be Code of Civil Procedure section 377.34.
Sources and Authority
Welfare and Institutions Code section 15657 provides:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or fiduciary abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 337.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.
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 eglected or abused for the sole reason that he or she voluntarily 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.
Civil Code section 3294(b) provides: "An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."
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 15610.07 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 15610.27 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.
"In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve 'intentional,' 'willful,' or 'conscious' wrongdoing of a 'despicable' or 'injurious' nature. 'Recklessness' refers to a subjective state of culpability greater than simple negligence, which has been described as a 'deliberate disregard' of the 'high degree of probability' that an injury will occur. Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.' " (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 [82 Cal.Rptr.2d 610], internal citations omitted.)
"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].)
"As amended in 1991, the Elder Abuse Act was designed to protect elderly and dependent persons from abuse, neglect, or abandonment. In addition to adopting measures designed to encourage reporting of abuse and neglect, the Act authorizes the court to award attorney fees to the prevailing plaintiffs and allows survivors to recover pain and suffering damages in cases of intentional and reckless abuse where the elder has died." (Mack v. Soung (2000) 80 Cal.App.4th 966, 971-972 [95 Cal.Rptr.2d 830], internal citations omitted.)
"The effect of the 1991 amendment to the elder abuse law was to . . . permit a decedent's personal representative or successor to recover pain and suffering damages when plaintiff can prove by clear and convincing evidence recklessness, oppression, fraud, or malice in the commission of elder abuse. Even then, those damages would be subject to the $250,000 cap placed by Civil Code section 3333.2, subdivision (b) for noneconomic damages against a health care provider. In this limited circumstance, the decedent's right to pain and suffering damages would not die with him or her; the damages would be recoverable by a survivor." (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
"[I]f the neglect is 'reckless,' or done with 'oppression, fraud or malice,' then the action falls within the scope of section 15657 and as such cannot be considered simply 'based on . . . professional negligence' within the meaning of section 15657.2. The use of such language in section 15657, and the explicit exclusion of 'professional negligence' in section 15657.2, make clear the Elder Abuse Act's goal was to provide heightened remedies for, as stated in the legislative history, 'acts of egregious abuse' against elder and dependent adults, while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence. That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened 'clear and convincing evidence' standard." (Delaney, supra, 20 Cal.4th at p. 35, internal citation omitted.)
"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, supra, 80 Cal.App.4th at p. 974, 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)