California Jury Instruction CACI 1620 Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual Elements

New September 2003; Revised June 2014, December 2014

Nakase Wade | California Business Lawyers & Corporate Lawyers

Use this instruction in a negligence case if the only damages sought are for emotional distress. The doctrine of “negligent infliction of emotional distress” is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)

A “direct victim” case is one in which the plaintiff’s claim of emotional distress is based on the violation of a duty that the defendant owes directly to the plaintiff. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 [147 Cal.Rptr.3d 41].) The California Supreme Court has allowed plaintiffs to recover damages as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien, supra, 27 Cal.3d at p. 923); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).

The judge will normally decide whether a duty was owed to the plaintiff as a direct victim. If the issue of whether the plaintiff is a direct victim is contested, a special instruction with the factual dispute laid out for the jury will need to be drafted.

This instruction should be read in conjunction with either CACI No. 401, Basic Standard of Care, or CACI No. 418, Presumption of Negligence per se.

If the plaintiff witnesses the injury of another, use CACI No. 1621, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Bystander—Essential Factual Elements. For instructions for use for emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No. 1623, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential Factual Elements.

Elements 1 and 3 of this instruction could be modified for use in a strict products liability case. A plaintiff may seek damages for the emotional shock of viewing the injuries of another when the incident is caused by defendant’s defective product. (Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587 [195 Cal.Rptr. 902].)

The explanation in the last paragraph of what constitutes “serious” emotional distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional distress from negligence without other injury is the same as “severe” emotional distress for the tort of intentional infliction of emotional distress. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)

•“ ‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence … .’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ ” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)

•“ ‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Ragland, supra, 209 Cal.App.4th at p. 205.)

•“[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional distress damages result from a duty owed the plaintiff ‘that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1510 [97 Cal.Rptr.3d 555].)

•“We agree that the unqualified requirement of physical injury is no longer justifiable.” (Molien, supra, 27 Cal.3d at p. 928.)

•“[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp. 927–928.)

•“In our view, this articulation of ‘serious emotional distress’ is functionally the same as the articulation of ‘severe emotional distress’ [as required for intentional infliction of emotional distress]. Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)