California Civil Jury Instructions (CACI)

3106. Physical Abuse - Essential Factual Elements (Welf. & Inst. Code, § 15610.63)

[Name of plaintiff] claims that [he/she/[name of decedent]] was physically abused 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] physically abused [name of plaintiff/decedent] by [insert applicable grounds for abuse];

2. That [name of plaintiff/decedent] was [65 years of age or older/a dependent adult] at the time of the conduct;

3. That [name of plaintiff/decedent] was harmed; and

4. 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. 3107, Physical Abuse— Essential Factual Elements—Enhanced Remedies Sought—Individual or Individual and Employer Defendant (Welf. & Inst. Code, §§ 15657, 15610.63) or CACI No. 3108, Physical Abuse—Essential Factual Elements—Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, §§ 15657, 15610.63). 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 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 15610.63 provides: "Physical abuse" means any of the following:

(a) Assault, as defined in Section 240 of the Penal Code.

(b) Battery, as defined in Section 242 of the Penal Code.

(c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.

(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water.

(e) Sexual assault, that means any of the following:

(1) Sexual battery, as defined in Section 243.4 of the Penal Code.

(2) Rape, as defined in Section 261 of the Penal Code.

(3) Rape in concert, as described in Section 264.1 of the Penal Code.

(4) Spousal rape, as defined in Section 262 of the Penal Code.

(5) Incest, as defined in Section 285 of the Penal Code.

(6) Sodomy, as defined in Section 286 of the Penal Code.

(7) Oral copulation, as defined in Section 288a of the Penal Code.

(8) Sexual penetration, as defined in Section 289 of the Penal Code.

(f) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:

(1) For punishment.

(2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given.

(3) For any purpose not authorized by the physician and surgeon.

"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].)

Secondary Sources

California Elder Law Litigation (Cont.Ed.Bar 2003-2005) §§ 2.69, 2.71

(Revised December 2005)