PERSONAL INJURY DAMAGES INSTRUCTIONS Introduction

PERSONAL INJURY DAMAGES INSTRUCTIONS Introduction In RAJI (CIVIL) 3d, the Damages Instructions were taken out of the Negligence Instructions section and placed in their own section. As these instructions are appropriate for use in all personal injury sections, not just negligence cases, the RAJI (CIVIL) 5th follows that format. In the typical personal injury case, the basic instructions are in the Standard Instructions section, the case specific instructions are in the specialized sections (Fault, Negligence, Medical Negligence, Product Liability), and the damages instructions are in the Personal Injury Damages Instructions section. Not all of the elements of damages will be appropriate for every case and in some instances can be redundant. Accordingly, the instructions will need to be modified based on the individual case. Personal Injury Damages 4 (Punitive Damages) has been revised to incorporate recent case law in this area. (July 2013) 1

REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 5TH PERSONAL INJURY DAMAGES 1 Measure of Damages If you find [any] [name of defendant] liable to [name of plaintiff], you must then decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for each of the following elements of damages proved by the evidence to have resulted from the fault of [any] [name of defendant] [party] [person]: 1 1. The nature, extent, and duration of the injury. 2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury. 3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future. 2 4. Lost earnings to date, and any decrease in earning power or capacity in the future. 5. Loss of love, care, affection, companionship, and other pleasures of the [marital] [parent-child] relationship. 3 6. Loss of enjoyment of life, that is, the participation in life s activities to the quality and extent normally enjoyed before the injury. 4 0 USE NOTE: 1 Use the appropriate bracketed language, as follows: 1. defendant One defendant, no claim of plaintiff s fault. 2. any defendant More than one defendant, no claim of plaintiff s fault 3. any party One or more defendants, claim of plaintiff s fault. 4. any person One or more defendants, claim of non-party fault (with or without a claim of plaintiff s fault). 5. Alternatives: Any appropriate combination of the above; or, identify by name all those who might be at fault; or, simply say:... resulted from any fault in the case. Modifications: Depending on the evidence in the case, some of the elements in Paragraphs 2, 3, 4, 5, and 6 may be inapplicable or cumulative, and some unlisted elements may be applicable and not cumulative. Customize the instruction to fit the case. Property Damage Claim: If there is a property claim, add, as the last element of the instruction: (7) The difference in the value of the damaged property immediately before and immediately after the damage. 2 Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 129 P.3d 487 (Ct. App. 2006); Saide v. Stanton, 135 Ariz. 76, 77, 659 P.2d 35, 36 (1983). (July 2013) 2

3 International Harvester Co. v. Chiarello, 27 Ariz. App. 411 (Ct. App. 1976). See also Kaufman v. Langhofer, 222 P.3d 272 (Ct. App. 2009) ( A cause of action for loss of consortium is also limited to spouses, parents, and children. ) (citing Barnes v. Outlaw, 192 Ariz. 283, 286, 964 P.2d 484, 487 (1998) (spouses); Villareal v. State Dep't of Transp., 160 Ariz. 474, 477, 774 P.2d 213, 216 (1989) (parents); Frank v. Superior Court, 150 Ariz. 228, 234, 722 P.2d 955, 961 (1986) (children)). 4 See Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 38-39, 31 P.3d 806, 812-13 (Ct. App. 2001)(holding that hedonic damages can be a component of a general damages claim, distinguishable from, and not duplicative of, damages for pain and suffering. ); but see Quintero v. Rogers, 221 Ariz. 536, 539, 212 P.3d 874, 877(Ct. App. 2009) (finding that loss of enjoyment of life damages are within the category of pain and suffering damages excluded by Arizona s survival statute, A.R.S. 14-3110.) (July 2013) 3

PERSONAL INJURY DAMAGES INSTRUCTIONS PERSONAL INJURY DAMAGES 2 Pre-Existing Condition, Unusually Susceptible Plaintiff 0 [Name of plaintiff] is not entitled to compensation for any physical or emotional condition that pre-existed the fault of [name of defendant]. However, if [name of plaintiff] had any preexisting physical or emotional condition that was aggravated or made worse by [name of defendant] s fault, you must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for that aggravation or worsening. You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the fault of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury. SOURCE: JUDICIAL COUNCIL OF CALIFORNIA CIVIL JURY INSTRUCTIONS (2003-04), CACI No. 3928. USE NOTE: 1. Identification of Possible Parties at Fault: The instruction is drafted for a one-defendant, no comparative fault case. In other cases, replace defendant here with the same language used in RAJI (CIVIL) 5th Personal Injury Damages 1 from the [any] [defendant] [party] [person] options. 2. The Two Principles Covered by this Instruction: Use the first paragraph when there is an issue of aggravation of pre-existing condition. ( Worsening has been added as a clarification of aggravation ; some may find the instruction just as clear with one or the other of those concepts removed.) Use the second paragraph when there is an issue of injury to an unusually susceptible person. Use both paragraphs if both issues are in the case. 3. Fault or Negligence : If desired, negligence can be substituted for fault in this instruction; the instruction will be correct either way. (July 2013) 4

PERSONAL INJURY DAMAGES 3 Damages for Wrongful Death of Spouse, Parent, or Child 0 If you find [name of defendant] liable to [name of plaintiff], you must then decide the full amount of money that will reasonably and fairly compensate [name of each survivor] [separately] for each of the following elements of damages proved by the evidence to have resulted from the death of [name of decedent]. 1. The loss of love, affection, companionship, care, protection, and guidance since the death and in the future. 2. The pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and reasonably probable to be experienced in the future. 3. The income and services that have already been lost as a result of the death, and that are reasonably probable to be lost in the future. 4. The reasonable expenses of funeral and burial. 5. The reasonable expenses of necessary medical care and services for the injury that resulted in the death. SOURCE: A.R.S. 12-613; City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383 (1970); Jeffery v. United States, 381 F. Supp. 505, 510 (Ariz. 1974); Salinas v. Kahn, 2 Ariz. App. 181, 193-95, 407 P.2d 120, 132-34 (1965). See also White v. Greater Ariz. Bicycling Ass n, 216 Ariz. 133, 136, 163 P.3d 1083, 1086 (Ct. App. 2007); Mullen v. Posada Del Sol Health Care Ctr., 169 Ariz. 399, 400, 819 P.2d 985, 986 (Ct. App. 1991). USE NOTE: Depending on the evidence in the case, some of the elements in paragraphs 1 and 2 may be inapplicable or cumulative, and the elements listed in paragraphs 3, 4, and 5 may be inapplicable. Customize the instruction to fit the case. (July 2013) 5

REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 5TH PERSONAL INJURY DAMAGES 4 Punitive Damages If you find [name of defendant] liable to [name of plaintiff], you may consider assessing additional damages to punish [name of defendant] or to deter [name of defendant] and others from similar misconduct in the future. Such damages are called punitive or exemplary damages. To recover such damages, [name of plaintiff] has the burden of proving by clear and convincing evidence, either direct or circumstantial, that [name of defendant] acted with an evil mind. This required state of mind may be shown by any of the following: 1. Intent to cause injury; or 2. Wrongful conduct motivated by spite or ill will; or 3. 1 [[Name of defendant] acted to serve his own interests, having reason to know and consciously disregarding a substantial risk that his conduct might significantly injure the rights of others.] [[Name of defendant] consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.] SOURCE: 1. Elements of Punitive Damages: Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411, 422, 758 P.2d 1313, 1324 (1988); Volz v. Coleman Co., Inc., 155 Ariz. 567, 570, 748 P.2d 1191, 1194 (1987); Gurule v. Ill. Mut. Life & Cas. Co., 152 Ariz. 600, 601-2, 734 P.2d 85, 86-87 (1987); Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073, 1080 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 161-63, 726 P.2d 565, 577-79, (1986); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986). 2. Definition of Clear and Convincing: State v. King, 158 Ariz. 419, 422, 763 P.2d 239, 242 (1988); State v. Renforth, 155 Ariz. 385, 387, 746 P.2d 1315, 1317 (Ct. App. 1987), rev. denied, 158 Ariz. 487, 763 P.2d 983 (1988); see also U.S. v. Owens, 854 Fed. 2d 432, 436 (11th Cir. 1988), which accepted the Renforth definition of the clear and convincing standard of proof. USE NOTE: 1 Bracketed State of Mind Statements at Element 3: Use the bracketed language most appropriate for the case. The first bracketed statement is taken directly from Bradshaw; the second is taken directly from Gurule. Although the bracketed statements cover the same principle, there are differences the two. In some cases, therefore, one statement might be preferable to the other. Select one of the statements, but probably not both, as appropriate for the case. Or, replace both statements with other satisfactory language expressing the same principle. See Comment 1, infra. (July 2013) 6

PERSONAL INJURY DAMAGES INSTRUCTIONS PERSONAL INJURY DAMAGES 4 Punitive Damages To prove this required state of mind by clear and convincing evidence, [name of plaintiff] must persuade you that the punitive damages claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not true, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases. The law provides no fixed standard for the amount of punitive damages you may assess, if any, but leaves the amount to your discretion. [However, if you assess punitive damages, you may consider the character of [name of defendant] s conduct or motive, the nature and extent of the harm to plaintiff that [name of defendant] caused, and the nature and extent of defendant s financial wealth.] 2 2 Brackets: The brackets around sentences of RAJI (CIVIL) 5th Personal Injury Damages 4 indicate that some of the factors listed could be deleted or others added, depending on the evidence in a particular case. Causation: The plaintiff must also prove such conduct or action accompanied by an evil mind on the part of defendant was a cause of, or contributed to, injury to the plaintiff. Saucedo v. Salvation Army, 200 Ariz. 179, 182, 24 P.3d 1274, 1277 (Ct. App. 2001) (Act of leaving scene of hit and run, where pedestrian died on impact, did not contribute to harm to plaintiff, and therefore could not establish evil state of mind) Burden of Proof Paragraph: The burden of proof contained in this instruction is for use when the only claim in the case requiring proof by clear and convincing evidence is for punitive damages. If the clear and convincing standard applies to both punitive damages and other kinds of claims in the case, delete the burden of proof paragraph here and use RAJI (CIVIL) 5th Standard 3. In either situation, also use RAJI (CIVIL) 5th Standard 2. COMMENT: 1. Alternative Definitions of Evil Mind: Beginning with the 1986 cases of Linthicum and Rawlings, the Arizona Supreme Court has redefined the conduct, state of mind, and level of proof required for assessment of punitive damages. RAJI (CIVIL) 5th Personal Injury Damages 4 provides three alternative ways to show the evil mind element of a punitive damages claim. The specific language for these alternatives is directly from Bradshaw and Gurule. The Committee does not suggest that the alternatives set forth in the instruction are exclusive of all others, or that they have been stated here in the only correct way. The Arizona Supreme Court opinions contain many statements and expressions discussing and defining evil mind. The trial court may find other evil mind statements or formulations more appropriate for a particular case than any of those provided in Personal Injury Damages 4; in that event, the instruction may serve as a template. (July 2013) 7

REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 5TH PERSONAL INJURY DAMAGES 4 Punitive Damages 0 2. DUI or Other Voluntary Intoxication Cases: If there is adequate evidence that plaintiff s injury resulted from defendant s driving while under the influence of intoxicating liquors, a punitive damages instruction is probably warranted. However, intoxication alone, in the absence of other compelling circumstances, may not warrant punitive damages. Olson v. Walker, 162 Ariz. 174, 179, 781 P.2d 1015, 1020 (Ct. App. 1989). 3. Constitutional Issues: Because of the developing constitutional law in this area, the Committee has elected not to make substantive modifications to the RAJI Instruction on Punitive Damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513 (2003), BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 St. Ct. 1589 (1996); TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 113 S. Ct. 2711 (1993); Pac. Mut. Life. Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032 (1991). The trial court should assess whether changes to the instruction are appropriate based on Campbell and other decisions addressing constitutional issues. See also Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 134, 907 P. 2d 506, 520 (Ct. App. 1995) (Comparison of factors used in Alabama to review reasonableness of punitive damages in Haslip with procedural safeguards used by Arizona courts); Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 212 P.3d 810 (Ct. App. 2009) (Recent Arizona case finding punitive damages excessive in light of the Due Process Clause analysis of Campbell and Gore, which includes considerations regarding the reprehensibility of the defendant s conduct, the ratio of punitive damages to compensatory damages, and the amount of civil penalties which may be imposed in similar cases). (July 2013) 8

PERSONAL INJURY DAMAGES INSTRUCTIONS PERSONAL INJURY DAMAGES 5 Mortality Tables and Life Expectancy A person aged years has a life expectancy of years. This is merely an estimate of the probable average remaining length of life of all persons of this age. This estimate may be considered by you in determining the amount of damages for any permanent injury proved by the evidence to have resulted from the fault of [any] [name of defendant] [party] [person]. 0 SOURCE: National Vital Statistics Reports, Volume 61, No. 3, September 24, 2012. (July 2013) 9

10 National Vital Statistics Reports, Vol. 61, No. 3, September 24, 2012 Table 1. Life table for the total population: United States, 2008 Spreadsheet version available from: ftp://ftp.cdc.gov/pub/health_statistics/nchs/publications/nvsr/61_03/table01.xls. Probability of dying Number surviving to age x Number dying Person-years lived Total number of person-years lived above age x Expectation of life at age x Age (years) q x l x d x L x T x e x 0 1... 0.006593 100,000 659 99,425 7,812,389 78.1 1 2... 0.000461 99,341 46 99,318 7,712,964 77.6 2 3... 0.000281 99,295 28 99,281 7,613,646 76.7 3 4... 0.000219 99,267 22 99,256 7,514,365 75.7 4 5... 0.000172 99,245 17 99,237 7,415,109 74.7 5 6... 0.000155 99,228 15 99,221 7,315,872 73.7 6 7... 0.000139 99,213 14 99,206 7,216,651 72.7 7 8... 0.000126 99,199 12 99,193 7,117,445 71.7 8 9... 0.000110 99,187 11 99,181 7,018,252 70.8 9 10... 0.000093 99,176 9 99,171 6,919,071 69.8 10 11... 0.000081 99,167 8 99,162 6,819,900 68.8 11 12... 0.000087 99,158 9 99,154 6,720,738 67.8 12 13... 0.000123 99,150 12 99,144 6,621,583 66.8 13 14... 0.000196 99,138 19 99,128 6,522,440 65.8 14 15... 0.000293 99,118 29 99,104 6,423,312 64.8 15 16... 0.000395 99,089 39 99,070 6,324,208 63.8 16 17... 0.000490 99,050 49 99,026 6,225,138 62.8 17 18... 0.000581 99,002 58 98,973 6,126,112 61.9 18 19... 0.000666 98,944 66 98,911 6,027,139 60.9 19 20... 0.000746 98,878 74 98,841 5,928,228 60.0 20 21... 0.000832 98,804 82 98,763 5,829,387 59.0 21 22... 0.000915 98,722 90 98,677 5,730,624 58.0 22 23... 0.000972 98,632 96 98,584 5,631,946 57.1 23 24... 0.000993 98,536 98 98,487 5,533,362 56.2 24 25... 0.000987 98,438 97 98,390 5,434,875 55.2 25 26... 0.000974 98,341 96 98,293 5,336,485 54.3 26 27... 0.000966 98,245 95 98,198 5,238,192 53.3 27 28... 0.000964 98,150 95 98,103 5,139,994 52.4 28 29... 0.000973 98,056 95 98,008 5,041,891 51.4 29 30... 0.000993 97,960 97 97,912 4,943,883 50.5 30 31... 0.001020 97,863 100 97,813 4,845,971 49.5 31 32... 0.001052 97,763 103 97,712 4,748,158 48.6 32 33... 0.001088 97,660 106 97,607 4,650,446 47.6 33 34... 0.001134 97,554 111 97,499 4,552,839 46.7 34 35... 0.001183 97,443 115 97,386 4,455,340 45.7 35 36... 0.001242 97,328 121 97,268 4,357,954 44.8 36 37... 0.001314 97,207 128 97,143 4,260,687 43.8 37 38... 0.001400 97,080 136 97,012 4,163,543 42.9 38 39... 0.001507 96,944 146 96,871 4,066,531 41.9 39 40... 0.001635 96,798 158 96,718 3,969,661 41.0 40 41... 0.001777 96,639 172 96,553 3,872,942 40.1 41 42... 0.001937 96,468 187 96,374 3,776,389 39.1 42 43... 0.002128 96,281 205 96,178 3,680,015 38.2 43 44... 0.002348 96,076 226 95,963 3,583,837 37.3 44 45... 0.002588 95,850 248 95,726 3,487,873 36.4 45 46... 0.002833 95,602 271 95,467 3,392,147 35.5 46 47... 0.003082 95,331 294 95,184 3,296,681 34.6 47 48... 0.003350 95,038 318 94,878 3,201,496 33.7 48 49... 0.003647 94,719 345 94,546 3,106,618 32.8 49 50... 0.003974 94,374 375 94,186 3,012,071 31.9 50 51... 0.004331 93,999 407 93,795 2,917,885 31.0 51 52... 0.004703 93,592 440 93,371 2,824,090 30.2 52 53... 0.005080 93,151 473 92,915 2,730,719 29.3 53 54... 0.005455 92,678 506 92,425 2,637,804 28.5 54 55... 0.005837 92,173 538 91,904 2,545,379 27.6 55 56... 0.006244 91,635 572 91,348 2,453,475 26.8 56 57... 0.006696 91,062 610 90,757 2,362,127 25.9 57 58... 0.007200 90,453 651 90,127 2,271,369 25.1 58 59... 0.007767 89,801 698 89,453 2,181,242 24.3 59 60... 0.008397 89,104 748 88,730 2,091,790 23.5 60 61... 0.009094 88,356 804 87,954 2,003,060 22.7 61 62... 0.009850 87,552 862 87,121 1,915,106 21.9 62 63... 0.010659 86,690 924 86,228 1,827,985 21.1 See footnote at end of table.

Table 1. Life table for the total population: United States, 2008 Con. Spreadsheet version available from: ftp://ftp.cdc.gov/pub/health_statistics/nchs/publications/nvsr/61_03/table01.xls. National Vital Statistics Reports, Vol. 61, No. 3, September 24, 2012 11 Probability of dying Number surviving to age x Number dying Person-years lived Total number of person-years lived above age x Expectation of life at age x Age (years) q x l x d x L x T x e x 63 64... 0.011524 85,766 988 85,272 1,741,757 20.3 64 65... 0.012470 84,777 1,057 84,249 1,656,486 19.5 65 66... 0.013556 83,720 1,135 83,153 1,572,237 18.8 66 67... 0.014791 82,585 1,222 81,974 1,489,084 18.0 67 68... 0.016128 81,364 1,312 80,708 1,407,110 17.3 68 69... 0.017526 80,052 1,403 79,350 1,326,402 16.6 69 70... 0.019016 78,649 1,496 77,901 1,247,052 15.9 70 71... 0.020614 77,153 1,590 76,358 1,169,152 15.2 71 72... 0.022470 75,563 1,698 74,714 1,092,794 14.5 72 73... 0.024658 73,865 1,821 72,954 1,018,080 13.8 73 74... 0.027108 72,043 1,953 71,067 945,126 13.1 74 75... 0.029742 70,090 2,085 69,048 874,059 12.5 75 76... 0.032550 68,006 2,214 66,899 805,011 11.8 76 77... 0.035608 65,792 2,343 64,621 738,112 11.2 77 78... 0.039071 63,449 2,479 62,210 673,491 10.6 78 79... 0.043101 60,970 2,628 59,656 611,281 10.0 70 80... 0.047659 58,343 2,781 56,952 551,625 9.5 80 81... 0.052515 55,562 2,918 54,103 494,673 8.9 81 82... 0.057686 52,644 3,037 51,126 440,570 8.4 82 83... 0.063567 49,607 3,153 48,031 389,444 7.9 83 84... 0.070564 46,454 3,278 44,815 341,413 7.3 84 85... 0.078249 43,176 3,378 41,487 296,598 6.9 85 86... 0.086853 39,797 3,457 38,069 255,112 6.4 86 87... 0.096796 36,341 3,518 34,582 217,042 6.0 87 88... 0.107836 32,823 3,540 31,054 182,460 5.6 88 89... 0.119871 29,284 3,510 27,529 151,407 5.2 89 90... 0.132929 25,774 3,426 24,060 123,878 4.8 90 91... 0.147027 22,347 3,286 20,705 99,818 4.5 91 92... 0.162166 19,062 3,091 17,516 79,113 4.2 92 93... 0.178329 15,971 2,848 14,547 61,597 3.9 93 94... 0.195479 13,123 2,565 11,840 47,050 3.6 94 95... 0.213557 10,557 2,255 9,430 35,210 3.3 95 96... 0.232482 8,303 1,930 7,338 25,780 3.1 96 97... 0.252150 6,373 1,607 5,569 18,442 2.9 97 98... 0.272439 4,766 1,298 4,117 12,873 2.7 98 99... 0.293205 3,467 1,017 2,959 8,757 2.5 99 100.... 0.314293 2,451 770 2,066 5,798 2.4 100 and over... 1.000000 1,680 1,680 3,732 3,732 2.2 SOURCE: CDC/NCHS, National Vital Statistics System.