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Jury Instructions in Psychological and Sexual Tort Cases

I. Psychological Injury Cases Generally 2

II. Therapist Sexual Abuse Cases 6

III. Sexual Harassment Cases 11

IV. Teacher Sexual Molest Cases 15

V. Statute of Limitations Instructions in Psychological Injury Cases 18

PSYCHOLOGICAL INJURY CASES – GENERALLY

SPECIAL INSTRUCTION NO.

You are instructed that it is the law of this state that a defendant takes a victim as he finds her.

Lemere v. Safeway Stores, Inc. (1951)

102 Cal.App.2d 712; 288 P.2d 291

SPECIAL INSTRUCTION NO.

You are instructed that it is the law of this state that a defendant takes a victim as he finds her. Thus, the fact that the injuries and damages sustained were not anticipated will not relieve defendant from liability in monetary damages for any and all disabilities and damages resulting to plaintiff as a substantial factor of defendant’s negligence or intentional misconduct.

Lemere v. Safeway Stores, Inc. (1951)

102 Cal.App.2d 712; 228 P.2d 291

SPECIAL INSTRUCTION NO.

The Court instructs you that you are to determine whether because of the predisposition of the plaintiff, the incident in question had a special significance to her aside from the usual distress of any individual having had such and experience and if it did, it is no defense that the average or normal individual would not have sustained a mental disorder by reason thereof.

DeMare v. Cresci (1962)

58 Cal.2d 292, 301

SPECIAL INSTRUCTION NO.

The Court instructs you that if you find the plaintiff has exaggerated her alleged disabilities and her alleged pain and suffering, this does not necessarily, in this case, mean that she has given false testimony. Where a plaintiff claims she has suffered a mental disorder, then an exaggeration of disability may be itself a characteristic condition or symptom of a mental disorder. In such a case, you are instructed that a plaintiff’s exaggeration, in whole or in part, of her condition may be found by you, in whole or in part, as an aggravation of disease caused by the defendant or it may be, in whole or in part, due to deliberate malingering or fraudulent simulation of disability. The issue is one of fact for you to determine.

Taylor v. Pole (1940)

16 Cal.2d 668, 671

SPECIAL INSTRUCTION NO.

Reasonable compensation for any pain, discomfort, fears, anxiety, nervousness, grief, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, ordeal, loss of enjoyment of life, and other mental and emotional distress suffered by the plaintiffs, and of which injury was a cause, and for similar suffering reasonably certain to be experienced in the future from the same cause.

No definite standard of method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for pain and suffering, you shall exercise your authority with calm and reasonable judgment and damages you fix shall be just and reasonable in light of the evidence.

Any award for future pain and suffering shall not be reduced to present value.

THERAPIST SEXUAL ABUSE CASES

SPECIAL INSTRUCTION NO.

In performing professional services for a patient, a physician has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians practicing in the same or a similar locality and under similar circumstances.

The further duty of the physician is to use the care and skill ordinarily exercised in like cases by reputable members of the profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his or her best judgment in the exercise of skill and the application of learning, in an effort to accomplish the purpose for which the physician is employed.

A failure to fulfill any such duty is negligence.

The law does not condemn a physician simply because his efforts prove unsuccessful. No practitioner can guarantee results.

Where there is more than one recognized method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician and surgeon is not negligent if, in exercising his best judgment, he selects one of the approved methods, which later turns out to be a wrong selection, or one not favored by certain other practitioners.

It is quite possible for a physician or surgeon to err in judgment, or to be unsuccessful in his treatment, or to disagree with others of his profession, without being negligent.

On the other hand, if a physician and surgeon does not possess that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing practicing in the same or similar locality and under similar circumstances, or if he fails to exercise the care ordinarily exercised by reputable members of his profession in the same or similar locality and under similar circumstances, it is no defense to a charge of negligence that he did the best he could.

B.A.J.I. 6.02 and 6.03 as affirmed

in

Rainer v. Community Memorial

Hospital (1971)

18 Cal.App.3d 240

SPECIAL INSTRUCTION NO.

It is the law of this State that the following shall constitute a constructive fraud: any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to her prejudice, or to the prejudice of anyone claiming under him; or any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

Civil Code § 1573.

SPECIAL INSTRUCTION NO.

If you find that defendant to this action violated ____________________, the [statute] [ordinance] [regulation] just read to you [and that such violation was a cause of injury to another, you will find that such violation was negligence [unless such party proves by a preponderance of the evidence that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. In order to sustain such burden of proof, such party must prove by a preponderance of the evidence that he was faced with circumstances which prevented compliance or justified noncompliance with the [statute] [ordinance] [regulation]].

B.A.J.I. (8th Edition)

No. 3.45

§43.93. Cause of Action Against Psychotherapist for Sexual Contact with Patient.

(a) For the purposes of this section the following definitions are applicable:

(1) “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.

(2) “Psychotherapist” means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, a marriage, family and child counselor, a registered marriage, family, and child counselor intern or trainee, an educational psychologist, an apprentice social worker, or clinical social worker.

(3) “Sexual contact” means the touching of an intimate part of another person. “Intimate part” and “touching” have the same meaning as defined in subdivisions (F) and (d), respectively, of Section 243.4 of the Penal Code. For the purposes of this section, sexual contact includes sexual intercourse, sodomy, and oral copulation.

(4) “Therapeutic relationship” exists during the time the patient or client is rendered professional service by the therapist.

(5) “Therapeutic deception” means a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient’s or former patient’s treatment.

(b) A cause of action against a psychotherapist for sexual contact exists for a patient or former patient for injury caused by sexual contact with the psychotherapist, if the sexual contact occurred under any of the following conditions:

(1) During the period the patient was receiving psychotherapy from the psychotherapist.

(2) Within two years following termination of therapy.

(3) By means of therapeutic deception.

(c) The patient or former patient may recover damages from a psychotherapist who is found liable for sexual contact. It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions. No cause of action shall exist between spouses within a marriage.

If you find that the Defendant engaged in sexual contact including, but not limited to, sexual intercourse, with the plaintiff during the period of time that plaintiff was receiving psychotherapy from the defendant, or within two years following termination of therapy, or by means of therapeutic deception, then you shall find that the defendant has violated Civil Code section 43.93. “Therapeutic deception” means a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient’s or former patient’s treatment.

SEXUAL HARASSMENT CASES

SPECIAL INSTRUCTION NO.

It is unlawful employment practice for an employer or any person, because of sex, to harass an employee.

SPECIAL INSTRUCTION NO.

To establish a claim of environmental sexual harassment against defendants, plaintiff must prove, by a preponderance of the evidence, each of the following elements:

1. That plaintiff was subject to unwelcome sexual harassment;

2. That the harassment complained of was based upon sex;

3. That the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environments; and

4. That plaintiff suffered injury, damage, or harm which was caused by the sexual harassment.

SPECIAL INSTRUCTION NO.

Sexual harassment is either unwelcome sexual advances or other unwelcome verbal or physical conduct of a sexual nature. In order to constitute harassment, the conduct must be unwelcome in the sense that the employee did not solicit or invite it and the employee regarded the conduct as undesirable or offensive. In this connection, you may consider, among other factors, plaintiff’s speech and conduct and defendant’s speech and conduct.

SPECIAL INSTRUCTION NO.

Plaintiff must prove by a preponderance of the evidence that gender was a substantial factor in the claimed harassment and that if the plaintiff had been a man, she would not have been treated in the same manner.

SPECIAL INSTRUCTION NO.

To recover for sexual harassment, plaintiff must prove by a preponderance of the evidence that the unwelcome sexual advances or other unwelcome sexual conduct was either sufficiently severe or sufficiently pervasive to alter the conditions of her employment and to create an objectively hostile or abusive work environment. In other words, plaintiff must prove by a preponderance of the evidence that the environment in issue was such that a reasonable person would find it to be hostile or abusive and further that plaintiff herself subjectively perceived it to be hostile or abusive.

As respects the issue whether unwelcome sexual advances or conduct were “sufficiently severe,” you are to consider the seriousness and intensity of the advances or conduct. As respects the issue whether unwelcome sexual advances or conduct were “sufficiently pervasive,” plaintiff must show a concerted pattern of harassment of a repeated, routine or generalized nature. In other words, on the issue of pervasiveness, it is not enough for plaintiff to prove merely the existence of acts of harassment which were occasional, isolated, sporadic or trivial.

In making the determination as to whether the environment was hostile or abusive, you should look to the totality of the circumstances. Factors to consider include:

1. The nature of the sexual advances or conduct, that is, whether they were verbal or physical;

2. The frequency and severity of the sexual advances or conduct;

3. The context in which the sexual advances or conduct occurred;

4. Whether the sexual advances or conduct unreasonably interfered with an employee’s work performance.

SPECIAL INSTRUCTION NO.

The law provides that an employer is liable for the actual injury, damage or harm which is caused by an employee who also is a supervisor. Defendant was employed by defendant company, and also was a supervisor. Therefore, if you should find that plaintiff suffered actual injury, damage or harm caused by unlawful sexual harassment on the part of defendant, then your verdict must be against both defendant and defendant company for the amount of damages caused thereby.

TEACHER SEXUAL MOLESTATION CASES

SPECIAL INSTRUCTION

At the time of the events alleged in this lawsuit, there was in effect Penal Code section 1165.7(b) which stated:

Training in the duties imposed by this article

shall include training in child abuse identification

and training in child abuse reporting. As part of

that training, school district shall provide to

all employees being trained a written copy of the

reporting requirements and a written disclosure of

the employee’s confidentiality rights.

SPECIAL INSTRUCTION

In determining whether Defendant committed a battery or batteries on the plaintiff, a minor cannot consent to sexual contact with an adult.

SPECIAL INSTRUCTION

Penal Code section 288a(b)(1) states as follows:

Any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.

SPECIAL INSTRUCTION

At the time of the events alleged in this lawsuit, there was in effect Penal Code section 11166 which stated:

Except as provided in subdivision (b), any child care custodian, health practitioner, employee of a child protective agency, child visitation monitor, firefighter, animal control officer, or humane society officer who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment, whom he or she knows or reasonably suspects has been the victim of child abuse, shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within thirty-six hours of receiving the information concerning the incident.

For the purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse….

A “child protective agency” as used in this article means a police or sheriff’s department, a county probation department, or a county welfare department. It does not include a school district police or security department.

As used in this article, a “child care custodian” means a teacher; an instructional aide, a teacher’s aide, or a teacher’s assistant employed by any public or private school, who has been trained in the duties imposed by this article, if the school district so warranted to the State Department of Education.

“Child abuse” as used in this article, means a physical injury which is inflicted by other than accidental means on a child by another person. “Child abuse” also means the sexual abuse of a child.

“Child” means a person under the age of 18 years.

STATUTE OF LIMITATIONS INSTRUCTIONS

IN PSYCHOLOGICAL INJURY CASES

SPECIAL INSTRUCTION NO.

Where a defendant conceals material facts from a plaintiff by fraud or deceit or by misrepresentations, and where such concealment hinders the plaintiff in bringing her cause of action, the defendant may not assert the statute of limitations as a defense.

Bowman v. McPheeters (1947)

77 Cal.App.2d 795, 797, 799;

176 P.2d 745, 747

SPECIAL INSTRUCTION NO.

As a general rule, the doctrine of preventing the defendant from asserting the statute of limitations as a defense can be invoked when any delay in commencing an action is induced by defendant’s conduct.

If you find that the plaintiff was delayed in commencing her action because of the conduct of the defendant, then you will find that he cannot assert the statute of limitations as a defense.

Kurokawa v. Blum (1988)

199 Cal.App.3d 976;

245 Cal.Rptr. 463

SPECIAL INSTRUCTION NO.

Although the above time periods are the general rules applicable to the causes of action being asserted by plaintiff against defendant, there are doctrines which clarify these rules and which provide exceptions to these rules. I will now instruct you as to those.

The statutory time limit for the applicable statute of limitations to each cause of action asserted by plaintiff against defendant does not begin to run while the doctor/patient relationship continues.

Gray v. Reeves (1978)

76 Cal.App.3d 567, 577;

142 Cal.Rptr. 716, 722

Huysman v. Kirsch (1936)

6 Cal.2d 302, 308;

57 P.2d 908, 912

DeVault v. Logan (1963)

223 Cal.App.2d 802;

36 Cal.Rptr. 145, 148

SPECIAL INSTRUCTION NO.

An exception to the general statute of limitation referred to above is what is known as the delayed discovery rule. This rule applies to cases where the nature of the injury makes the injury difficult to discover within the statutory period.

Under the delayed discovery rule, a cause of action does not accrue, nor does the statute of limitations start to run, until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, her injury and its negligent cause.

Young v. Haines (1986)

41 Cal.3d 883, 890;

226 Cal.Rptr. 547, 549

Jolly v. Eli Lilly & Co. (1988)

44 Cal.3d 1103, 1109;

245 Cal.Rptr. 658, 661

Warrington v. Pfizer & Co., Inc. (1969)

274 Cal.App.2d 564, 567;

80 Cal.Rptr. 130, 131

SPECIAL INSTRUCTION NO.

An exception to the general statutes of limitations referred to above is what is known as the delayed discovery rule. This rule applies to cases where the nature of the injury makes the injury difficult to discover within the statutory period. Under the delayed discovery rule, a cause of action does not accrue, nor does the statute of limitations start to run, until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered both her injury and its negligent cause.

The one year statute of limitations for bringing an action for medical malpractice does not begin to run until the plaintiff is reasonably aware of not only the physical manifestation of the injury but its negligent cause as well.

Young v. Haines (1986)

41 Cal.3d 883, 890;

226 Cal.Rptr. 547, 549

Jolly v. Eli Lilly & Co. (1988)

44 Cal.3d 1103, 1109;

245 Cal.Rptr. 658, 661

Warrington v. Pfizer & Co., Inc. (1969)

274 Cal.App.3d 564, 567;

80 Cal.Rptr. 130, 131

Hills v. Aronsohn

152 Cal.App.3d 753;

199 Cal.Rptr. 816

SPECIAL INSTRUCTION NO.

A patient’s duty to discover harm and the causes therefor is lessened during the time they are in treatment with the person who figures to use the statute of limitations as a defense.

Unjian v. Berman (1989)

208 Cal.App.3d 881;

256 Cal.Rptr. 478

SPECIAL INSTRUCTION NO.

Where a plaintiff/patient inquires of the doctor/ defendant regarding potential causes of harm to the plaintiff resulting from the care and treatment of the defendant and the defendant allays those areas of inquiry by words and conduct, the plaintiff may reasonably rely upon those representations and as a result not discover the harm and/or causes therefore.

In this instance, the plaintiff is presumed to have not discovered harm and the causes therefore during the time the concerns have been allayed by the words and conduct of the defendant. The burden shifts to the defendant to prove that the plaintiff should reasonably have discovered the harm and the causes therefore during that period.

Unjian v. Berman (1989)

208 Cal.App.3d 881;

256 Cal.Rptr. 478

SPECIAL INSTRUCTION NO.

The general rule regarding the applicable statute of limitations with respect to the cause of action for fraud is three years from the date plaintiff had actual notice of the fraud committed by defendant.

The elements of a cause of action for fraud are: That the defendant made a representation to the plaintiff that was false; that the defendant knew that the representation was false when he made it; that the defendant made the representation with the intent to defraud the plaintiff; that the plaintiff was unaware of the falsity of the representation and justifiably relied upon the representation in acting upon it; that as a result of the false representation, the plaintiff sustained injuries and damages.

Code of Civil Procedure

Section 338

Rosenfeld, Meyer & Susman v. Cohen (1987)

191 Cal.App.3d 1035, 1059-1060;

236 Cal.Rptr. 14, 28

SPECIAL INSTRUCTION NO.

Plaintiff is contending that she did not discover, and that in the exercise of reasonable care she could not have discovered, the fact that she had been injured and that the cause of her injury was defendant’s conduct until about ______________. If you find these contentions to be true, then you will find in favor of plaintiff on the statute of limitations issue since she filed her complaint on ________________, within one year of her alleged date of discovery of her cause of action.

SPECIAL INSTRUCTION NO.

Plaintiff has sued defendant, on several different theories of liability. These theories, or what are termed causes of action, are: (1) Malpractice and/or medical negligence; (2) Abuse of transference; (3) Intentional infliction of emotional distress; (4) Battery; (5) Breach of fiduciary duty; (6) Sexual contact by psychotherapist with patient; (7) Fraud; (8) Constructive Fraud; and (9) Negligent misrepresentation. You must decide whether plaintiff has timely filed her complaint in accordance with the rules that I will give you with respect to each of these causes of action. One of any number of these causes of action can survive the statute of limitations without the other causes of action.

SPECIAL INSTRUCTION NO.

The general rule regarding the applicable statute of limitations with respect to the medical negligence and/or malpractice cause of action is one year from the date plaintiff discovers or should have discovered the malpractice. However, this statutory time period does not commence to run during any time period in which the plaintiff can prove the defendant committed fraud.

California Code of Civil Procedure

Section 340.5

SPECIAL INSTRUCTION NO.

The general rule regarding the applicable statute of limitations with respect to the causes of action for intentional infliction of emotional distress is one year from the date of discovery of the harm.

Code of Civil Procedure

Section 340

SPECIAL INSTRUCTION NO.

The general rule regarding the applicable statute of limitations with respect to the cause of actions for intentional infliction of emotional distress is one year from the act causing the injury.

Code of Civil Procedure

Section 340

SPECIAL INSTRUCTION NO.

Where a fiduciary relationship exists, facts which ordinarily require investigation may not incite suspicion and to not give rise to a duty of inquiry. Where there is a fiduciary relationship, the usual duty of diligence to discover facts constituting a cause of action does not exist. Thus, a plaintiff need not establish that she exercised due diligence to discover the facts of her cause of action within the statutory limitations period unless she is under a duty to inquire, and the circumstances are such that failure to inquire would be negligent. Where the plaintiff is not under such duty to inquire, the statute of limitations period does not begin to run until she actually discovers the facts constituting the cause of action, even though the means for obtaining the information are available.

In cases involving a confidential relationship, the duty to investigate may arise later because the plaintiff is entitled to rely upon the assumption that her fiduciary is acting on her behalf.

Hobbs v. Eichler (1985)

164 Cal.App.3d 174;

210 Cal.Rptr. 387, 404

SPECIAL INSTRUCTION NO.

Where a psychologist has been negligent in the treatment of his patient, and has made fraudulent representations, and has concealed the facts of his negligence, said psychologist may not take advantage of the statute of limitations as a defense.

Stafford v. Schultz (1954)

42 Cal.2d 767; 270 P.2d 1

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.

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