CACI 3922 Wrongful Death (Parents’ Recovery for Death of a Minor Child)

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/nonbinary pronoun] 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/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] 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 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:

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

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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 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.

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-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.

“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.)

“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.)

“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.)

“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].)

“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.)

“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 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, supra, 109 Cal.App.3d at p. 424, internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1878
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)
California Civil Practice: Torts §§ 23:8–23:8.2 (Thomson Reuters)