CACI No. 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/disfigurement/physical impairment/
inconvenience/grief/anxiety/humiliation/emotional distress/[insert other
No fixed 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/nonbinary pronoun] 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, May
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.
For actions or proceedings filed on or after January 1, 2022, and before January 1,
2026 (or if granted a preference under Code of Civil Procedure section 36 before
January 1, 2022), the survival action statute allows for recovery of a decedent’s
noneconomic damages for pain, suffering, or disfigurement. (Code Civ. Proc.,
§ 377.34(b).) (See CACI No. 3919, Survival Damages.) Insert only the bracketed
terms that apply in a survival action, and modify the instruction to make clear that
the damages are for the decedent’s pre-death pain, suffering, or disfigurement.
Sources and Authority
Term-Limited Exception for Survival Damages. Code of Civil Procedure section
“One of the most difficult tasks imposed on a fact finder is to determine the
amount of money the plaintiff is to be awarded as compensation for pain and
suffering. The inquiry is inherently subjective and not easily amenable to
concrete measurement.” (Pearl v. City of Los Angeles (2019) 36 Cal.App.5th
475, 491 [248 Cal.Rptr.3d 508], internal citations omitted.)
“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 ‘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.)
“[N]oneconomic damages do not consist of only emotional distress and pain and
suffering. They also consist of such items as invasion of a person’s bodily
integrity (i.e., the fact of the injury itself), disfigurement, disability, impaired
enjoyment of life, susceptibility to future harm or injury, and a shortened life
expectancy.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 [213
Cal.Rptr.3d 82].)
‘[T]here is no fixed 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.)
“We note that there may be certain cases where testimony of an expert witness
would be necessary to support all or part of an emotional distress damages
claim. For example, expert testimony would be required to the extent a plaintiff’s
damages are alleged to have arisen from a psychiatric or psychological disorder
caused or made worse by a defendant’s actions and the subject matter is beyond
common experience. We are not addressing such a case here. In this case, the
emotional distress damages arose from feelings of anxiety, pressure, betrayal,
shock, and fear of others to which [plaintiff] herself could and did testify. Expert
testimony was not required.” (Knutson v. Foster (2018) 25 Cal.App.5th 1075,
1099 [236 Cal.Rptr.3d 473].)
“The law in this state is that the testimony of a single person, including the
plaintiff, may be sufficient to support an award of emotional distress damages.”
(Knutson,supra, 25 Cal.App.5th at p. 1096, original italics.)
“[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
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 infliction 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 financial 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 (11th ed. 2017) Torts, §§ 1850-1854
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific 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.
(Matthew Bender)
California Civil Practice: Torts § 5:10 (Thomson Reuters)

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