California Civil Jury Instructions (CACI)

3922. Wrongful Death (Parents' Recovery for Death of a Minor Child)

If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of minor], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of minor]. 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 value of the financial support, if any, that [name of minor] would have contributed to the family during either the life expectancy that [name of minor] had before [his/ her] death or the life expectancy of [name of plaintiff], whichever is shorter;

2. The loss of gifts or benefits that [name of plaintiff] could have expected to receive from [name of minor];

3. Funeral and burial expenses; and

4. The reasonable value of household services that [name of minor] 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: The loss of [name of minor]'s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable mount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]

Do not include in your award any compensation for the following:

1. [Name of plaintiff]'s grief, sorrow, or mental anguish; or

2. [Name of minor]'s pain and suffering.

In computing these damages, you should deduct the present cash value of the probable costs of [name of minor]'s support and education.

In deciding a person's life expectancy, consider, among other factors, that person's health, habits, activities, lifestyle, and occupation. Life expectancy tables are evidence of a person's life expectancy but are not conclusive.

[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.]

Sources and Authority

Code of Civil Procedure section 377.60 provides: A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:

(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.

(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, 'putative spouse' means the urviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.

(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor resided for the previous 180 days in the decedent's household and was dependent on the decedent for one-half or more of the minor's support.

(d) This section applies to any cause of action arising on or after January 1, 1993.

(e) The addition of this section by Chapter 178 of the Statutes of 1992 was not intended to adversely affect the standing of any party having standing under prior law, and the standing of parties governed by that version of this section as added by Chapter 178 of the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of the Statutes of 1996.

(f) For the purpose of this section, "domestic partner" has the meaning provided in Section 297 of the Family Code.

Code of Civil Procedure section 377.61 provides: "In an action under this article, damages may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under Section 377.34. The court shall determine the respective rights in an award of the persons entitled to assert the cause of action."

"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.)

"Where the deceased was a minor child, recovery is based on the present value of reasonably probable future services and contributions, deducting the probable cost of rearing the child." (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1428, p. 908.)

"There is authority in such cases for deducting from the loss factors— including the pecuniary loss a parent suffers by being deprived of the comfort, protection and society of a child—the prospective cost to the parent of the child's support and education.

Although neither the loss factors nor such offsets are readily measurable in a particular case—nor need they be measured in precise erms of dollars and cents—in the case at bench the jury had before it for consideration a court order subject to mathematical computation which required plaintiff to pay support for his child in the sum of $125 monthly. The jury was entitled and required to take into consideration the prospective cost to plaintiff of the boy's maintenance and rearing, and they may well have offset their reasonable appraisal of such costs, under the general verdict, against any pecuniary loss which they found that plaintiff suffered." (Fields v. Riley (1969) 1 Cal.App.3d 308, 315 [81 Cal.Rptr. 671], internal citations omitted.)

"There are three distinct public policy considerations involved in the legislative 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.)

"We therefore conclude, on this basis as well, that 'wrongful 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." (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105 [11 Cal.Rptr.2d 468], internal citation omitted.)

"Damages for wrongful death are not limited to compensation for losses with 'ascertainable economic value.' Rather, the measure of damages is the value of the benefits the heirs could reasonably expect to receive from the deceased if she had lived." (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270], internal citations omitted.)

The wrongful death statute "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].)

"The California statutes and decisions . . . have been interpreted to bar the recovery of punitive damages in a wrongful death action." (Tarasoff v. Regents of the University of California (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).)

"Punitive damages are awardable to the decedent's estate in an action by the estate representative based on the cause of action the decedent ould have had if he or she had survived." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 616 [103 Cal.Rptr.2d 492], internal citation omitted.)

"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 [that] apportionment by the court, rather than the jury, is consistent with the efficient administration of justice." (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 535-536 [196 Cal.Rptr. 82].)

"[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 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 v. Toledo (1980) 109 Cal.App.3d 415, 424 [167 Cal.Rptr. 270], internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1428, p. 908

4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, §§ 55.10-55.13 (Matthew Bender)

California Tort Damages (Cont.Ed.Bar 1988) Wrongful Death, §§ 3.1-3.52

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

2 Bancroft-Whitney's California Civil Practice (1992) Torts, § 23:8

(Revised December 2005)