California Jury Instruction CACI 3905A Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)

New September 2003; Revised April 2008, December 2009, December 2011

Nakase Wade | California Business Lawyers & Corporate Lawyers

Insert the bracketed terms that best describe the damages claimed by the plaintiff.

If future noneconomic damages are sought, include the last two paragraphs. Do not instruct the jury to further reduce the award to present cash value. (See CACI No. 3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value Tables.) 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].) Include the last sentence only if the plaintiff is claiming both future economic and noneconomic damages.

•“One of the most difficult tasks imposed on a fact finder is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. The inquiry is inherently subjective and not easily amenable to concrete measurement.” (Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475, 491 [248 Cal.Rptr.3d 508], internal citations omitted.)

•“In general, courts have not attempted to draw distinctions between the elements of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the unitary concept of ‘pain and suffering’ has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. But the detriment, nevertheless, is a genuine one that requires compensation, and the issue generally must be resolved by the ‘impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.’ ” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893 [103 Cal.Rptr. 856, 500 P.2d 880], internal citations and footnote omitted.)

•“[N]oneconomic damages do not consist of only emotional distress and pain and suffering. They also consist of such items as invasion of a person’s bodily integrity (i.e., the fact of the injury itself), disfigurement, disability, impaired enjoyment of life, susceptibility to future harm or injury, and a shortened life expectancy.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 [213 Cal.Rptr.3d 82].)

•“ ‘ “ ‘[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress,’ ” ’ and a ‘ “jury is entrusted with vast discretion in determining the amount of damages to be awarded … .” [Citation.]’ ” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1602 [146 Cal.Rptr.3d 585].)

•“Compensatory damages may be awarded for bodily harm without proof of pecuniary loss. The fact that there is no market price calculus available to measure the amount of appropriate compensation does not render such a tortious injury noncompensable. ‘For harm to body, feelings or reputation, compensatory damages reasonably proportioned to the intensity and duration of the harm can be awarded without proof of amount other than evidence of the nature of the harm. There is no direct correspondence between money and harm to the body, feelings or reputation. There is no market price for a scar or for loss of hearing since the damages are not measured by the amount for which one would be willing to suffer the harm. The discretion of the judge or jury determines the amount of recovery, the only standard being such an amount as a reasonable person would estimate as fair compensation.’ ” (Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1664–1665 [28 Cal.Rptr.2d 88], internal citations omitted.)

•“The general rule of damages in tort is that the injured party may recover for all detriment caused whether it could have been anticipated or not. In accordance with the general rule, it is settled in this state that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.” (Crisci v. The Security Insurance Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173], internal citations omitted.)

•“We note that there may be certain cases where testimony of an expert witness would be necessary to support all or part of an emotional distress damages claim. For example, expert testimony would be required to the extent a plaintiff’s damages are alleged to have arisen from a psychiatric or psychological disorder caused or made worse by a defendant’s actions and the subject matter is beyond common experience. We are not addressing such a case here. In this case, the emotional distress damages arose from feelings of anxiety, pressure, betrayal, shock, and fear of others to which [plaintiff] herself could and did testify. Expert testimony was not required.” (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1099 [236 Cal.Rptr.3d 473].)

•“The law in this state is that the testimony of a single person, including the plaintiff, may be sufficient to support an award of emotional distress damages.” (Knutson, supra, 25 Cal.App.5th at p. 1096, original italics.)

•“[W]here a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that defendant’s negligence was a cause of plaintiff’s injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.” (Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 933 [64 Cal.Rptr.3d 920].)

•“ ‘To entitle a plaintiff to recover present damages for apprehended future consequences, there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d 576, 588 [81 P.2d 894], internal citation 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.)

•“[R]ecovery for emotional distress caused by injury to property is permitted only where there is a preexisting relationship between the parties or an intentional tort.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203 [147 Cal.Rptr.3d 41].)

•“[W]e uphold both the economic and emotional distress damages plaintiffs recovered for trespass to personal property arising from [defendant]’s act of intentionally striking [plaintiff’s dog] with a bat.” (Plotnik, supra, 208 Cal.App.4th at p. 1608 [under claim for trespass to chattels].)

•“Furthermore, ‘the negligent infliction of emotional distress—anxiety, worry, discomfort—is compensable without physical injury in cases involving the tortious interference with property rights [citations].’ Thus, if [defendant]’s failure to repair the premises constitutes a tort grounded on negligence, appellant is entitled to prove his damages for emotional distress because the failure to repair must be deemed to constitute an injury to his tenancy interest (right to habitable premises), which is a species of property.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [173 Cal.Rptr.3d 159], original italics, internal citation omitted.)

•“[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 156 [184 Cal.Rptr.3d 26].)