California Jury Instruction CACI 3921 Wrongful Death (Death of an Adult)

New September 2003; Revised December 2005, February 2007, April 2008, December 2009, June 2011, December 2013, May 2020

Nakase Wade | California Business Lawyers & Corporate Lawyers

If the decedent recovered damages for lost earning capacity in the decedent’s lifetime, an heir’s recovery for lost financial support (economic damages item 1) is to be measured by the decedent’s physical condition at the time of death. There is no similar limitation on recovery for loss of consortium (noneconomic damages item 1). (Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997–1000 [159 Cal.Rptr.3d 195]; see Blackwell v. American Film Co. (1922) 189 Cal. 689, 694 [209 P. 999].)

One of the life-expectancy subjects in the second sentence of the second-to-last paragraph should be the decedent, and the other should be the plaintiff. This definition is intended to apply to the element of damages pertaining to the financial support that the decedent would have provided to the plaintiff.

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-3905, Damages for Wrongful Death (Death of an Adult).)

•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.)

•“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.)

•“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [191 Cal.Rptr.3d 766], original italics.)

•“ ‘[W]rongful 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.” (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 195 [231 Cal.Rptr.3d 324].)

•“Under Code of Civil Procedure section 377.61, damages for wrongful death “are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection.” (Boeken, supra, 217 Cal.App.4th at p. 997.)

•“These benefits include the personal services, advice, and training the heirs would have received from the deceased, and the value of her society and companionship. ‘The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial “injury” to the family for which just compensation should be paid.’ ” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270], internal citations omitted.)

•“ ‘The pecuniary value of the society, comfort, and protection that is lost through the wrongful death of a spouse, parent, or child may be considerable in cases where, for instance, the decedent had demonstrated a “kindly demeanor” toward the statutory beneficiary and rendered assistance or “kindly offices” to that person. [Citation.]’ ” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 198−199 [191 Cal.Rptr.3d 263].)

•“Factors such as the closeness of a family unit, the depth of their love and affection, and the character of the decedent as kind, attentive, and loving are proper considerations for a jury assessing noneconomic damages … .” (Soto, supra, 239 Cal.App.4th at p. 201.)

•“California permits recovery in a child’s wrongful death action for loss of a parent’s consortium.” (Boeken, supra, 217 Cal.App.4th at pp. 997–998.)

•“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].)

•“Where, as here, decedent was a husband and father, a significant element of damages is the loss of financial benefits he was contributing to his family by way of support at the time of his death and that support reasonably expected in the future. The total future lost support must be reduced by appropriate formula to a present lump sum which, when invested to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the times, in the amounts and for the period such future benefits would have been received.” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 520–521 [196 Cal.Rptr. 82], internal citations 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, original italics.)

•“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.)

•“[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 apportionment by the court, rather than the jury, is consistent with the efficient administration of justice.” (Canavin, supra, 148 Cal.App.3d at pp. 535–536.)

•“[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.)

•“Accordingly, the trial court in this case did not err in refusing [defendant]’s two proposed jury instructions, and in denying its request to modify CACI No. 3921, its motion for a directed verdict, its motion for a judgment notwithstanding the verdict, and its motion for a new trial, all of which were based on the erroneous ground that [plaintiff]’s loss of consortium damages were to be measured from [decedent]’s physical condition at the time of his death.” (Boeken, supra, 217 Cal.App.4th at p. 1000.)