CACI No. 3921. Wrongful Death (Death of an Adult)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3921.Wrongful Death (Death of an Adult)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
decedent], you also must decide how much money will reasonably
compensate [name of plaintiff] for the death of [name of decedent]. This
compensation is called “damages.”
[Name of plaintiff] does not have to prove the exact amount of these
damages. However, you must not speculate or guess in awarding
damages.
The damages claimed by [name of plaintiff] fall into two categories called
economic damages and noneconomic damages. You will be asked to state
the two categories of damages separately on the verdict form.
[Name of plaintiff] claims the following economic damages:
1. The financial support, if any, that [name of decedent] would have
contributed to the family during either the life expectancy that
[name of decedent] had before [his/her/nonbinary pronoun] death or
the life expectancy of [name of plaintiff], whichever is shorter;
2. The loss of gifts or benefits that [name of plaintiff] would have
expected to receive from [name of decedent];
3. Funeral and burial expenses; and
4. The reasonable value of household services that [name of
decedent] would have provided.
Your award of any future economic damages must be reduced to present
cash value.
[Name of plaintiff] also claims the following noneconomic damages:
1. The loss of [name of decedent]’s love, companionship, comfort,
care, assistance, protection, affection, society, moral support[;
[and]/.]
[2. The loss of the enjoyment of sexual relations[; [and]/.]]
[3. The loss of [name of decedent]’s training and guidance.]
No fixed standard exists for deciding the amount of noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense.
[For these noneconomic damages, determine the amount in current
dollars paid at the time of judgment that will compensate [name of
plaintiff] for those damages. This amount of noneconomic damages
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should not be further reduced to present cash value because that
reduction should only be performed with respect to future economic
damages.]
In determining [name of plaintiff]’s loss, do not consider:
1. [Name of plaintiff]’s grief, sorrow, or mental anguish;
2. [Name of decedent]’s pain and suffering; or
3. The poverty or wealth of [name of plaintiff].
In deciding a person’s life expectancy, you may consider, among other
factors, the average life expectancy of a person of that age, as well as
that person’s health, habits, activities, lifestyle, and occupation.
According to [insert source of information], the average life expectancy of
a[insert number]-year-old [male/female] is [insert number] years, and the
average life expectancy of a [insert number]-year-old [male/female] is
[insert number] years. This published information is evidence of how long
a person is likely to live but is not conclusive. Some people live longer
and others die sooner.
[In computing these damages, consider the losses suffered by all plaintiffs
and return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
New September 2003; Revised December 2005, February 2007, April 2008,
December 2009, June 2011, December 2013, May 2020
Directions for Use
If the decedent recovered damages for lost earning capacity in the decedent’s
lifetime, an heir’s recovery for lost financial support (economic damages item 1) is
to be measured by the decedent’s physical condition at the time of death. There is
no similar limitation on recovery for loss of consortium (noneconomic damages item
1). (Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997-1000 [159
Cal.Rptr.3d 195]; see Blackwell v. American Film Co. (1922) 189 Cal. 689, 694
[209 P. 999].)
One of the life-expectancy subjects in the second sentence of the second-to-last
paragraph should be the decedent, and the other should be the plaintiff. This
definition is intended to apply to the element of damages pertaining to the financial
support that the decedent would have provided to the plaintiff.
Use of the life tables in Vital Statistics of the United States, published by the
National Center for Health Statistics, is recommended. (See Life Expectancy
Table - Male and Life Expectancy Table - Female, following the Damages series.)
The first column shows the age interval between the two exact ages indicated. For
example, 50-51 means the one-year interval between the fiftieth and fifty-first
birthdays.
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For an instruction, worksheets, and tables for use in reducing future economic
damages to present value, see CACI No. 3904B, Use of Present-Value Tables.
The paragraph concerning not reducing noneconomic damages to present cash value
is bracketed because the law is not completely clear. It has been held that all
damages, pecuniary and nonpecuniary, must be reduced to present value. (See Fox v.
Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 569 [184 Cal.Rptr. 87]; cf.
Restat.2d of Torts, § 913A [future pecuniary losses must be reduced to present
value].) The view of the court in Fox was that damages for lost value of society,
comfort, care, protection and companionship must be monetarily quantified, and thus
become pecuniary and subject to reduction to present value. However, the California
Supreme Court subsequently held that with regard to future pain and suffering, 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]), so there is no further reduction to
present value. (See CACI No. 3904A, Present Cash Value, and CACI No. 3904B,
Use of Present-Value Tables.) While it seems probable that Salgado should apply to
wrongful death actions, no court has expressly so held.
Assuming that Salgado applies to wrongful death, this paragraph is important to
ensure that the jury does not apply any tables and worksheets provided to reduce
future economic damages to present value (see CACI No. 3904B) to the
noneconomic damages also. Note that because only future economic damages are to
be reduced to present value, the jury must find separate amounts for economic and
noneconomic damages and for past and present economic damages. (See CACI No.
VF-3905, Damages for Wrongful Death (Death of an Adult).)
Sources and Authority
• Cause of Action for Wrongful Death. Code of Civil Procedure section 377.60.
• Damages for Wrongful Death. Code of Civil Procedure section 377.61.
• “Generally, wrongful death claims are legally distinct from claims for personal
injury and loss of consortium. ‘A cause of action for wrongful death is a
statutory claim that compensates specified heirs of the decedent for losses
suffered as a result of a decedent’s death.’ Although each heir has a ‘personal
and separate’ claim, the wrongful death statutes ordinarily require joint litigation
of the heirs’ claims in order to prevent a series of suits against the tortfeasor.
However, that requirement does not deprive a court of subject matter jurisdiction
to try a wrongful death action when an heir fails to participate in the action.”
(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872 [240 Cal.Rptr.3d 1],
internal citations omitted.)
• “A cause of action for wrongful death is purely statutory in nature, and therefore
‘exists only so far and in favor of such person as the legislative power may
declare.’ ” (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1184 [272
Cal.Rptr. 304], internal citations omitted.)
• “There are three distinct public policy considerations involved in the legislative
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creation of a cause of action for wrongful death: ‘(1) compensation for survivors,
(2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages
recoverable.’ ” (Barrett, supra, 222 Cal.App.3d at p. 1185, internal citation
omitted.)
• “The elements of the cause of action for wrongful death are the tort (negligence
or other wrongful act), the resulting death, and the damages, consisting of the
pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239
Cal.App.4th 959, 968 [191 Cal.Rptr.3d 766], original italics.)
• “ ‘[W]rongful act’ as used in section 377 means any kind of tortious act,
including the tortious act of placing defective products into the stream of
commerce.” (Barrett, supra, 222 Cal.App.3d at p. 1191.)
• “In any action for wrongful death resulting from negligence, the complaint must
contain allegations as to all the elements of actionable negligence.” (Novak v.
Continental Tire North America (2018) 22 Cal.App.5th 189, 195 [231
Cal.Rptr.3d 324].)
• “Under Code of Civil Procedure section 377.61, damages for wrongful death
“are measured by the financial benefits the heirs were receiving at the time of
death, those reasonably to be expected in the future, and the monetary equivalent
of loss of comfort, society, and protection.” (Boeken, supra, 217 Cal.App.4th at
p. 997.)
• “These benefits include the personal services, advice, and training the heirs
would have received from the deceased, and the value of her society and
companionship. ‘The services of children, elderly parents, or nonworking
spouses often do not result in measurable net income to the family unit, yet
unquestionably the death of such a person represents a substantial “injury” to the
family for which just compensation should be paid.’ ” (Allen v. Toledo (1980)
109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270], internal citations omitted.)
• “ ‘The pecuniary value of the society, comfort, and protection that is lost through
the wrongful death of a spouse, parent, or child may be considerable in cases
where, for instance, the decedent had demonstrated a “kindly demeanor” toward
the statutory beneficiary and rendered assistance or “kindly offices” to that
person. [Citation.]’ ” (Soto v. BorgWarner Morse TEC Inc. (2015) 239
Cal.App.4th 165, 198199 [191 Cal.Rptr.3d 263].)
• “Factors such as the closeness of a family unit, the depth of their love and
affection, and the character of the decedent as kind, attentive, and loving are
proper considerations for a jury assessing noneconomic damages . . . .” (Soto,
supra, 239 Cal.App.4th at p. 201.)
• “California permits recovery in a child’s wrongful death action for loss of a
parent’s consortium.” (Boeken, supra, 217 Cal.App.4th at pp. 997-998.)
• “Code of Civil Procedure section 377 has long allowed the recovery of funeral
expenses in California wrongful death actions.” (Vander Lind v. Superior Court
(1983) 146 Cal.App.3d 358, 364 [194 Cal.Rptr. 209].)
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• “Where, as here, decedent was a husband and father, a significant element of
damages is the loss of financial benefits he was contributing to his family by
way of support at the time of his death and that support reasonably expected in
the future. The total future lost support must be reduced by appropriate formula
to a present lump sum which, when invested to yield the highest rate of return
consistent with reasonable security, will pay the equivalent of lost future benefits
at the times, in the amounts and for the period such future benefits would have
been received.” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d
512, 520-521 [196 Cal.Rptr. 82], internal citations 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, original
italics.)
• “The California statutes and decisions . . . have been interpreted to bar the
recovery of punitive damages in a wrongful death action.” (Tarasoff v. Regents
of Univ. of Cal. (1976) 17 Cal.3d 425, 450 [131 Cal.Rptr. 14, 551 P.2d 334],
internal citation omitted.) There is an exception to this rule for death by felony
homicide for which the defendant has been convicted. (Civ. Code, § 3294(d).)
• “California cases have uniformly held that damages for mental and emotional
distress, including grief and sorrow, are not recoverable in a wrongful death
action.” (Krouse v. Graham (1977) 19 Cal.3d 59, 72 [137 Cal.Rptr. 863, 562
P.2d 1022], internal citations omitted.)
• “[A] simple instruction excluding considerations of grief and sorrow in wrongful
death actions will normally suffice.” (Krouse, supra, 19 Cal.3d at p. 69.)
• “[T]he competing and conflicting interests of the respective heirs, the difficulty
in ascertaining individual shares of lost economic support when dealing with
minors, the lack of any reason under most circumstances to apportion the lump-
sum award attributable to loss of monetary support where minors are involved,
the irrelevance of the heirs’ respective interests in that portion of the award
pertaining to lost economic support in determining the aggregate award, and the
more efficient nature of court proceedings without a jury, cumulatively establish
apportionment by the court, rather than the jury, is consistent with the efficient
administration of justice.” (Canavin, supra, 148 Cal.App.3d at pp. 535-536.)
• “[W]here all statutory plaintiffs, properly represented by legal counsel waive
judicial apportionment, the trial court should instruct the jury to return separate
verdicts unless the remaining considerations enumerated above mandate refusal.”
(Canavin, supra, 148 Cal.App.3d at p. 536.)
• “We note that the court instructed the jury that in determining pecuniary loss
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they should consider inter alia the age, state of health and respective life
expectancies of the deceased and each plaintiff but should be concerned only
with ‘the shorter of the life expectancies, that of one of the plaintiffs or that of
the deceased. . . .’ This was a correct statement of the law.” (Francis v. Sauve
(1963) 222 Cal.App.2d 102, 120-121 [34 Cal.Rptr. 754], internal citation
omitted.)
• “It is the shorter expectancy of life that is to be taken into consideration; for
example; if, as in the case here, the expectancy of life of the parents is shorter
than that of the son, the benefits to be considered are those only which might
accrue during the life of the surviving parents.” (Parsons v. Easton (1921) 184
Cal. 764, 770-771 [195 P. 419], internal citation omitted.)
• “The life expectancy of the deceased is a question of fact for the jury to decide,
considering all relevant factors including the deceased’s health, lifestyle and
occupation. Life expectancy figures from mortality tables are admissible but are
not conclusive.” (Allen, supra, 109 Cal.App.3d at p. 424, internal citations
omitted.)
• “Accordingly, the trial court in this case did not err in refusing [defendant]’s two
proposed jury instructions, and in denying its request to modify CACI No. 3921,
its motion for a directed verdict, its motion for a judgment notwithstanding the
verdict, and its motion for a new trial, all of which were based on the erroneous
ground that [plaintiff]’s loss of consortium damages were to be measured from
[decedent]’s physical condition at the time of his death.” (Boeken, supra, 217
Cal.App.4th at p. 1000.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1873-1880
California Tort Damages (Cont.Ed.Bar 2d ed.) Wrongful Death, §§ 3.1-3.58
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, §§ 55.10-55.13
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages,
§§ 177.163-177.167 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.25 (Matthew
Bender)
California Civil Practice: Torts, §§ 23:8-23:8.2 (Thomson Reuters)
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© Judicial Council of California.