CACI Jury Instruction No. 3921.Wrongful Death (Death of an Adult)

If you decide that [name of plaintiff] has proved [his/her/nonbinary

pronoun] claim against [name of defendant] for the death of [name of

decedent], you also must decide how much money will reasonably

compensate [name of plaintiff] for the death of [name of decedent]. 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 financial support, if any, that [name of decedent] would have

contributed to the family during either the life expectancy that

[name of decedent] 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] would have

expected to receive from [name of decedent];

3. Funeral and burial expenses; and

4. The reasonable value of household services that [name of

decedent] 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:

1. The loss of [name of decedent]’s love, companionship, comfort,

care, assistance, protection, affection, society, moral support[;

[and]/.]

[2. The loss of the enjoyment of sexual relations[; [and]/.]]

[3. The loss of [name of decedent]’s training and guidance.]

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

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should not be further reduced to present cash value because that

reduction should only be performed with respect to future economic

damages.]

In determining [name of plaintiff]’s loss, do not consider:

1. [Name of plaintiff]’s grief, sorrow, or mental anguish;

2. [Name of decedent]’s pain and suffering; or

3. The poverty or wealth of [name of plaintiff].

In deciding a person’s life expectancy, you may consider, among other

factors, the average life expectancy of a person of that age, as well as

that person’s health, habits, activities, lifestyle, and occupation.

According to [insert source of information], the average life expectancy of

a[insert number]-year-old [male/female] is [insert number] years, and the

average life expectancy of a [insert number]-year-old [male/female] is

[insert number] years. This published information is evidence of how long

a person is likely to live but is not conclusive. Some people live longer

and others die sooner.

[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, February 2007, April 2008,

December 2009, June 2011, December 2013, May 2020

Directions for Use

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.

DAMAGES CACI No. 3921

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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).)

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.)

• “There are three distinct public policy considerations involved in the legislative

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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].)

DAMAGES CACI No. 3921

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• “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

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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.)

Secondary Sources

9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1873-1880

California Tort Damages (Cont.Ed.Bar 2d ed.) Wrongful Death, §§ 3.1-3.58

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,

§§ 177.163-177.167 (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)

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Practice Areas

Wrongful Death

CACI Jury Instruction No. 3921.Wrongful Death (Death of an Adult)