California Civil Jury Instructions (CACI) (2017)

3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)

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3905A.Physical Pain, Mental Suffering, and Emotional Distress
(Noneconomic Damage)
[Insert number, e.g., “1.”][Past] [and] [future] [physical pain/mental
suffering/loss of enjoyment of life/disfigu ement/physical impairment/
inconvenience/grief/anxiety/humiliation/emotional distress/[insert other
damages]].
No fixe standard exists for deciding the amount of these noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense.
[To recover for future [insert item of pain and suffering], [name of
plaintiff] must prove that [he/she] is reasonably certain to suffer that
harm.
For future [insert item of pain and suffering], determine the amount in
current dollars paid at the time of judgment that will compensate [name
of plaintiff] for future [insert item of pain and suffering]. [This amount of
noneconomic damages should not be further reduced to present cash
value because that reduction should only be performed with respect to
economic damages.]]
New September 2003; Revised April 2008, December 2009, December 2011
Directions for Use
Insert the bracketed terms that best describe the damages claimed by the plaintiff.
If future noneconomic damages are sought, include the last two paragraphs. Do not
instruct the jury to further reduce the award to present cash value. (See CACI No.
3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value Tables.)
The amount that the jury is to award should already encompass the idea of today’s
dollars for tomorrow’s loss. (See Salgado v. County of L.A. (1998) 19 Cal.4th 629,
646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585].) Include the last sentence only if the
plaintiff is claiming both future economic and noneconomic damages.
Sources and Authority
• “In general, courts have not attempted to draw distinctions between the
elements of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the
unitary concept of ‘pain and suffering’ has served as a convenient label under
which a plaintiff may recover not only for physical pain but for fright,
nervousness, grief, anxiety, worry, mortification shock, humiliation, indignity,
embarrassment, apprehension, terror or ordeal. Admittedly these terms refer to
subjective states, representing a detriment which can be translated into monetary
loss only with great difficulty. But the detriment, nevertheless, is a genuine one
that requires compensation, and the issue generally must be resolved by the
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‘impartial conscience and judgment of jurors who may be expected to act
reasonably, intelligently and in harmony with the evidence.’ ” (Capelouto v.
Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893 [103 Cal.Rptr. 856,
500 P.2d 880], internal citations and footnote omitted.)
• “ ‘ “ ‘[T]here is no fixe or absolute standard by which to compute the
monetary value of emotional distress,’ ” ’ and a ‘ “jury is entrusted with vast
discretion in determining the amount of damages to be awarded . . . .”
[Citation.]’ ” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1602 [146
Cal.Rptr.3d 585].
• “Compensatory damages may be awarded for bodily harm without proof of
pecuniary loss. The fact that there is no market price calculus available to
measure the amount of appropriate compensation does not render such a
tortious injury noncompensable. ‘For harm to body, feelings or reputation,
compensatory damages reasonably proportioned to the intensity and duration of
the harm can be awarded without proof of amount other than evidence of the
nature of the harm. There is no direct correspondence between money and harm
to the body, feelings or reputation. There is no market price for a scar or for
loss of hearing since the damages are not measured by the amount for which
one would be willing to suffer the harm. The discretion of the judge or jury
determines the amount of recovery, the only standard being such an amount as
a reasonable person would estimate as fair compensation.’ ” (Duarte v.
Zachariah (1994) 22 Cal.App.4th 1652, 1664–1665 [28 Cal.Rptr.2d 88], internal
citations omitted.)
• “The general rule of damages in tort is that the injured party may recover for
all detriment caused whether it could have been anticipated or not. In
accordance with the general rule, it is settled in this state that mental suffering
constitutes an aggravation of damages when it naturally ensues from the act
complained of, and in this connection mental suffering includes nervousness,
grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.”
(Crisci v. The Security Insurance Co. of New Haven, Connecticut (1967) 66
Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173], internal citations omitted.)
• “[W]here a plaintiff has undergone surgery in which a herniated disc is removed
and a metallic plate inserted, and the jury has expressly found that defendant’s
negligence was a cause of plaintiff’s injury, the failure to award any damages
for pain and suffering results in a damage award that is inadequate as a matter
of law.” (Dodson v. J. Pacific Inc. (2007) 154 Cal.App.4th 931, 933 [64
Cal.Rptr.3d 920].)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from
the original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11
Cal.2d 576, 588 [81 P.2d 894], internal citation omitted.)
• “To avoid confusion regarding the jury’s task in future cases, we conclude that
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when future noneconomic damages are sought, the jury should be instructed
expressly that they are to assume that an award of future damages is a present
value sum, i.e., they are to determine the amount in current dollars paid at the
time of judgment that will compensate a plaintiff for future pain and suffering.
In the absence of such instruction, unless the record clearly establishes
otherwise, awards of future damages will be considered to be stated in terms of
their present or current value.” (Salgado, supra, 19 Cal.4th at pp. 646–647.)
• “[R]ecovery for emotional distress caused by injury to property is permitted
only where there is a preexisting relationship between the parties or an
intentional tort.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th
182, 203 [147 Cal.Rptr.3d 41].)
• “[W]e uphold both the economic and emotional distress damages plaintiffs
recovered for trespass to personal property arising from [defendant]’s act of
intentionally striking [plaintiff’s dog] with a bat.” (Plotnik,supra, 208
Cal.App.4th at p. 1608 [under claim for trespass to chattels].)
• “Furthermore, ‘the negligent inflictio of emotional distress—anxiety, worry,
discomfort—is compensable without physical injury in cases involving the
tortious interference with property rights [citations].’ Thus, if [defendant]’s
failure to repair the premises constitutes a tort grounded on negligence,
appellant is entitled to prove his damages for emotional distress because the
failure to repair must be deemed to constitute an injury to his tenancy interest
(right to habitable premises), which is a species of property.” (Erlach v. Sierra
Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [173 Cal.Rptr.3d 159],
original italics, internal citation omitted.)
• “[U]nless the defendant has assumed a duty to plaintiff in which the emotional
condition of the plaintiff is an object, recovery is available only if the emotional
distress arises out of the defendant’s breach of some other legal duty and the
emotional distress is proximately caused by that breach of duty. Even then, with
rare exceptions, a breach of the duty must threaten physical injury, not simply
damage to property or financia interests.” (Wilson v. Southern California
Edison Co. (2015) 234 Cal.App.4th 123, 156 [184 Cal.Rptr.3d 26].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1671–1675
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specifi Items Of
Compensatory Damages, ¶ 3:140 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.68–1.74
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, §§ 51.01–51.14
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.145 et seq.
CACI No. 3905A DAMAGES
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(Matthew Bender)
1 California Civil Practice Torts, § 5:10 (Thomson Reuters)
3906–3919. Reserved for Future Use
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