California Civil Jury Instructions (CACI)

3108. Physical Abuse - Essential Factual Elements— Enhanced Remedies Sought—Employer Defendant (Welf. & Inst. Code, §§ 15657, 15610.63)

[Name of plaintiff] claims that [he/she/[name of decedent]] was physically abused 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 the harm. To establish this claim, [name of plaintiff] must prove all of the following by clear and convincing evidence:

1. That one or more employees of [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 the employee[s] acted with [recklessness/malice/ oppression/fraud];

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

5. That the employee['s][s'] conduct was a substantial factor in causing [name of plaintiff/decedent]'s harm; and

6. [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. 3106, Physical Abuse— Essential Factual Elements (Welf. & Inst. Code, § 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.

If the plaintiff is seeking damages against the employer and the employee, use CACI No. 3107, Physical Abuse—Essential Factual Elements— Enhanced Remedies Sought—Individual or Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657, 15610.63).

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 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 he 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 15610.63 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.

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."

"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].)

"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' hat 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, supra, 20 Cal.4th at pp. 31-32, internal citations omitted.)

"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.)

Secondary Sources

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

1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly, § 5.33[2] (Matthew Bender)

(Revised December 2005)