California Civil Jury Instructions (CACI) (2017)

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

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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 financia 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 benefit 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 fixe 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
should not be further reduced to present cash value because that
reduction should only be performed with respect to future economic
damages.]
Do not include in your award any compensation for the following:
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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.]
New September 2003; Revised December 2005, April 2008, December 2009, June
2011
Directions for Use
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 firs column shows the age interval between the two exact ages indicated. For
example, 50–51 means the one-year interval between the fiftiet and fifty-fir
birthdays.
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. Pacifi 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
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noneconomic damages also. Note that because only future economic damages are
to be reduced to present value, the jury must fin separate amounts for economic
and noneconomic damages and for past and present economic damages. (See CACI
No. VF-3906, Damages for Wrongful Death (Parents’ Recovery for Death of a
Minor Child).)
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.
• “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 (10th ed. 2005)
Torts, § 1695.)
• “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 terms 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.)
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• “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 benefit 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 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).)
• “Punitive damages are awardable to the decedent’s estate in an action by the
estate representative based on the cause of action the decedent would 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.)
• “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.)
• “[T]he competing and conflictin 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. Pacifi Southwest Airlines
(1983) 148 Cal.App.3d 512, 535–536 [196 Cal.Rptr. 82].)
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• “[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 benefit 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 figure from mortality tables are admissible but are
not conclusive.” (Allen, supra, 109 Cal.App.3d at p. 424, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1695
California Tort Damages (Cont.Ed.Bar) Wrongful Death, §§ 3.1–3.52
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,
§§ 177.162–177.167 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.25 (Matthew
Bender)
2 California Civil Practice: Torts, §§ 23:8–23:8.2 (Thomson Reuters)
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