Lead Opinion
Opinion
We granted review in this case to consider:
(1) whеther emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance is an injury for which damages may be recovered in a negligence action in the absence of physical injury;
(2) whether Firestone Tire and Rubber Company is liable for intentional infliction of emotional distress under Christensen v. Superior Court (1991)54 Cal.3d 868 [2 Cal.Rptr.2d 79 ,820 P.2d 181 ];
*974 (3) whether the cost of future medical monitoring to detect the onset of cancer is a recoverable item of damage when, as a result of a defendant’s negligence, a plaintiff has an increased risk of future illness but suffers no present physical injury or illness; and
(4) whether any effect should be given to evidence that a plaintiff has negligently ingested other toxic substances or carcinogens.
Our analysis of existing case law and policy considerations relevant to the availability of damages for emotional distress leads us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.
We also conclude, however, that an exception to this general rule is warranted if the toxic exposure that has resulted in the fear of cancer is caused by conduct amounting to “oppression, fraud, or malice,” as defined in Civil Code section 3294. In such cases, a plaintiff should be allowed to recover without having to show knowledge that it is more likely than not that the feared cancer will occur, so long as the plaintiff’s fear is otherwise serious, genuine and reasonable.
We find further that Christensen v. Superior Court, supra,
On the issue of medical monitoring costs, we hold that such costs are a compensable item of damages in a negligence action where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of the plaintiff’s toxic exposure and that the recommended monitoring is reasonable.
Finally, we conclude that when a defendant in a negligence action demonstrates that a plaintiff’s smoking is negligent and that a portion of the plaintiff’s fear of cancer is attributable to the smoking, comparative fault principles may be applied to reduce the amount of recovery for emotiоnal distress damages based on such fear.
Factual and Procedural Background
This is a toxic exposure case brought by four landowners living adjacent to a landfill. As a result of defendant Firestone’s practice of disposing of its toxic wastes at the landfill, the landowners were subjected to prolonged exposure to certain carcinogens. While none of the landowners currently suffers from any cancerous or precancerous condition, each faces an enhanced but unquantified risk of developing cancer in the future due to the exposure.
The following background facts are contained in the trial court’s statement of decision following trial.
From 1963 until 1980, Firestone operated a tire manufacturing plant near Salinas. In 1967, Firestone contracted with Salinas Disposal Service and Rural Disposal (hereafter SDS), two refuse collection companies operating the Crazy Horse landfill (hereafter Crazy Horse), for disposal of its industrial waste. Firestone agreed to deposit its waste in dumpsters provided by SDS located at the plant site. SDS agreed to haul the waste to Crazy Horse and deposit it there.
Crazy Horse, a class II sanitary landfill owned by the City of Salinas, covers approximately 125 acres suitable for the disposal of household and commercial solid waste. Unlike dump sites that are classified class I, class II landfills such as Crazy Horse prohibit toxic substances and liquids because of the danger that they will leach into the groundwater and cause contamination.
At the outset of their contractual relationship, SDS informed Firestone that no solvents, cleaning fluids, oils or liquids were permitted at Crazy Horse. Firestone provided assurances that these types of waste would not be sent to the landfill.
Notwithstanding its assurances, Firestone sent large quantities of liquid waste to Crazy Horse, including banbury drippings (a by-product of the tire manufacturing process) containing a combination of semiliquid toxic chemicals. Firestone also sent liquid waste oils, liquid tread end cements, and solvents to the landfill.
In May 1977, Firestone’s plant engineer, who was in charge of all environmental matters, sent a memorandum to Firestone’s plant managers
In order to comply with this policy, Firestone initially made efforts to take the waste materials to a class I dump site. However, Firestone accumulated more waste than had been anticipated and disposing of the waste proved costly. When noncompliance with the policy became widespread, the plant engineer sent another memorandum to plant management complaining about the lack of compliance and pointing out that the policy was required by California law.
During this time, the Salinas plant operated under a production manager who had been sent from Firestone’s company headquarters in Akron, Ohio, for the purpose of “turning the plant around” and making it more profitable. This manager became angered over the costs of the waste disposal program and decided to discontinue it. As a consequence, Firestone’s hazardous waste materials were once again deposited at Crazy Horse.
Frank and Shirley Potter owned property and lived adjacent to Crazy Horse. Joe and Linda Plescia were their neighbors.
In 1984, the Potters and the Plescias (hereafter plaintiffs) discovered that toxic chemicals had contaminated their domestic water wells. The chemicals included: benzene; toluene; chloroform; 1,1 -dichloroethene; methylene chloride; tetrachloroethene; 1,1,1 -trichloroethane; trichloroethene; and vinyl chloride. Of these, both benzene and vinyl chloride are known to be human carcinogens. Many of the others are strongly suspected to be carcinogens.
In 1985, plaintiffs filed separate suits against Firestone for damages and declaratory relief. Their complaints against Firestone stated causes of action for, inter alia, negligence, negligent and intentional infliction of emotional distress, and strict liability/ultrahazardous activity. The two cases were tried together in a court trial. After considering all the evidence, the court found that Firestone was negligent; that negligent and intentional infliction of emotional distress were established; and that Firestone’s conduct was an ultrahazardous activity that would subject Firestone to strict liability for resulting damages. Judgment was entered in favor of plaintiffs.
In its statement of decision, the trial court concluded that Firestone’s waste disposal practices from 1967 until 1974 constituted actionable negligence. In particular, it determined that Firestone’s dumping of liquid and semiliquid wastes at Crazy Horse, despite having been told that such dumping was prohibited, fell below the appropriate standard of care. In rejecting
The trial court also concluded that Firestone was liable for intentional infliction of emotional distress. The court found that the 1977 memorandum detailing how liquid wastes should be disposed reflected Firestone’s increased knowledge at that time about the dangers of toxic waste. Given the evidence regarding this memorandum and the fact that the memorandum represented Firestone’s official waste disposal policy, the court concluded that Firestone’s decision to dump its waste at Crazy Horse in violation of that policy in order to reduce costs was extreme and outrageous conduct.
Finally, the trial court determined that the dumping of large amounts of toxic wastes in a class II landfill constituted an ultrahazardous activity.
In finding liability, the trial court determined that the toxic chemicals in plaintiffs’ drinking water were the same chemicals or “daughter” chemicals as those used at the Firestone plant. Firestone was the heaviest single contributor of waste at Crazy Horse, and the only contributor with the identical “suite” of chemicals to those found in the water. The court also noted the expert testimony established that the chemicals that migrated off the Firestone plant site so closely resembled those in the water that the comparison constituted a virtual “fingerprint” identifying Firestone as the source of the contaminants.
The court did not attribute any item of damage to any one specific theory of recovery. After noting that plaintiffs’ likelihood of harm due to their toxic exposure was the subject of conflicting medical opinions at trial, the court concluded there was convincing evidence that the prolonged nature of the exposure had “enhanced” plaintiffs’ risk of developing cancer and other maladies, and that this enhanced susceptibility was a “presently existing physical condition.” The court observed that although there was no way to quantify this risk, the risk was nevertheless very real. In its view, reliable scientific opinion and common sense both supported the conclusion that a
The court also stated that although plaintiffs testified to a constellation of physical symptoms which they attributed to the toxic chemicals, it was “not possible to demonstrate with sufficient certainty a causal connection between these symptoms and the well water contamination. Nevertheless, plaintiffs will always fear, and reasonably so, that physical impairments they experience are the result of the well water and are the precursers [sz'c] of life threatening disease. Their fears are not merely subjective but are corroborated by substantial medical and scientific opinion.” Based on these findings, plaintiffs were awarded damages totalling $800,000 for their lifelong fear of cancer and resultant emotional distress.
The court further concluded that since plaintiffs now live with an increased vulnerability to serious disease, it was axiomatic that they should receive periodic medical monitoring to detect the onset of disease at the earliest possible time and that early diagnosis was unquestionably important to increase the chances of effective treatment. Accordingly, the court awarded damages totalling $142,975 as the present value of the costs of such monitoring, based on plaintiffs’ life expectancies.
The court also awarded plaintiffs damages totalling $269,500 for psychiatric illness and the cost of treating such illness,
Firestone appealed, arguing that the damage awards were not supported by any of the legal theories relied on by the trial court and that the evidence was insufficient to support the trial court’s findings. It claimed that the award for “fear of cancer” in the absence of physical injury was an unwarranted extension of liability for negligent infliction of emotional distress, that if such fear is compensable it should not be so where the plaintiff cannot establish that he or she has a “probability” of developing cancer, and that the amount of damages awarded each plaintiff was not based on proof of individualized injury. The award for “psychiatric injury” was challenged on the ground that the injury was indistinguishable from fear of cancer and was not supported by the evidence.
Finally, Firestone argued that the trial court had erred in admitting and considering irrelevant evidence, that plaintiffs’ comparative negligence had not been considered, that compensation for “disruption” of plaintiffs’ lives was improper in an action in which property damages are not recoverable,
The Court of Appeal reversed the awards for medical monitoring costs, as well as a postjudgment order directing Firestone to pay costs and interest, but otherwise affirmed the judgment. The court held that, given the circumstances in which plaintiffs ingested the carcinogens, it was unnecessary for them to establish a present physical injury in order to recover for their fear of cancer. It further held it was unnecessary fоr plaintiffs to prove they were likely to develop cancer, noting their fear was certain, definite and real, and not contingent on whether they in fact develop the disease. Plaintiffs had proven the elements of a negligence cause of action and had demonstrated, under an objective standard, that their emotional distress was serious. The court also held Firestone was properly found liable for intentional infliction of emotional distress. However, the court reversed the awards for medical monitoring costs because plaintiffs failed to establish that cancer was reasonably certain to occur, and did not address the challenge to the amount of those awards. The court affirmed the amount of the compensatory damages award and found the punitive damage award proper.
Because that court concluded that the negligence and intentional infliction of emotional distress causes of action supported the damage awards, it did not reach Firestone’s claim that the trial court erred in finding that its conduct constituted an ultrahazardous activity for which it was strictly liable.
Discussion
Before addressing the parties’ claims, it would be useful to identify what is not at issue in this case and to reiterate what is. Firestone does not currently challenge, nor do we undertake to address, the correctness of the award for the general disruption to plaintiffs’ lives. We also do not consider Firestone’s perfunctory claim that the psychiatric illness component of the emotional distress award is erroneous.
A. Negligence: Fear of Cancer
“Fear of cancer” is a term generally used to describe a present anxiety over developing cancer in the future.
The availability of damages for fear of cancer as a result of exposure to carcinogens or other toxins in negligence actions is a relatively novel issue
We must now consider whether, pursuant to California precedent, emotional distress engendered by the fear of developing cancer in the future as a result of a toxic exposure is a recoverable item of damages in a negligence action.
1. Parasitic Recovery: Immune System Impairment and/or Cellular Damage as Physical Injury
Because it initially appeared plaintiffs might have suffered damage to their immune systems, we solicited the views of the parties on whether such damage constitutes physical injury. We did so because it is settled in California that in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages. (Crisci v. Security Insurance Co. (1967)
Although the availability of parasitic damages for emotional distress engendered by a fear of developing cancer in the future appears to be an
No California cases address whether impairment of the immune system response and cellular damage constitute “physical injury” sufficient to allow recovery for parasitic emotional distress damages. Courts in other jurisdictions that have considered this issue recently have come to differing conclusions.
Plaintiffs, citing several such cases, contend that immune system impairment and cellular damage is a physical injury for which parasitic damages for emotional distress are available. (E.g., Werlein v. United States (D.Minn. 1990)
Conversely, Firestone contends that mere subcellular changes that are unaccompanied by clinically verifiable symptoms of illness or disease do not constitute a physical injury sufficient to support a claim for parasitic emotional distress damages. To support this contention, Firestone relies on a case in which workers’ claims for fear of cancer from asbestos exposure were denied because they had failed to show that their fear was based on knowledge that their lungs were functionally impaired. (In re Hawaii Federal Asbestos Cases (D.Hawaii 1990)
It is not clear from the record in this case, however, that these plaintiffs’ emotional distress is parasitic to this type of supposed injury. The statement of decision by the trial court does not include an express finding that plaintiffs’ exposure to the contaminated well water resulted in physical injury, cellular damage or immune system impairment. The court made no
2. Nonparasitic Fear of Cancer Recovery
We next determine whether the absence of a present physical injury precludes recovery for emotional distress engendered by fear of cancer. Firestone argues that California should not recognize a duty to avoid negligently causing emotional distress to another, but, if such a duty is recognized, recovery should be permitted in the absence of physical injury only on proof that the plaintiff’s emotional distress or fear is caused by knowledge that future physical injury or illness is more likely than not to occur as a direct result of the defendant’s conduct. Amici curiae, many of whom represent organizations of manufacturers and their insurers, would preclude all recovery for emotional distress in the absence of physical injury.
a. Independent Duty
Firestone first asks the court to expressly adopt the rule recently applied by the Supreme Court of Texas in Boyles v. Kerr (Tex. 1993)
That is already the law in California. Indeed, the Texas court relied on recent decisions of this court in which we recognized that there is no independent tort of negligent infliction of emotional distress. (Boyles v. Kerr, supra,
The lesson of these decisions is: unless 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. (See Cooper v. Superior Court (1984)
Those limits on recovery for emotional distress caused by the negligent conduct of another do not aid Firestone here, however. Firestone did violate a duty imposed on it by law and regulation to dispose of toxic waste only in a class I landfill and to avoid contamination of underground water.
This is not a case in which a negligence cause of action is predicated only on a claim that the defendant breached a duty to avoid causing emotional distress.
b. Absence of Physical Injury
Amici curiae argue that no recovery for emotional distress arising from fear of cancer should be allowed in any case unless the plaintiff can establish a present physical injury such as a clinically verifiable cancerous or precancerous condition. Amici curiae advance several legal and policy arguments to support this position. None is persuasive.
Significantly, we recently reaffirmed the principle that, in California, “damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact. . . .” (Burgess, supra,
Contrary to amici curiae’s assertions, this principle has never been restricted to cases involving bystanders or preexisting relationships. Notably, amici curiae cite no authority even suggesting such a limitation.
Amici curiae next contend that substantial policy reasons nevertheless support a physical injury requirement for recovery of fear of cancer damages
This argument overlooks the reasons for our decision to discard the requirement of physical injury. As we observed more than a decade ago, “[t]he primary justification for the requirement of physical injury appears to be that it serves as a screening device to minimize a presumed risk of feigned injuries and false claims. [Citations.]” (Molien v. Kaiser Foundation Hospitals (1980)
In Molien, supra,
Second, we observed that the physical injury requirement “encourages extravagant pleading and distorted testimony.” (Molien, supra,
Therefore, rather than adhere to what we perceived as an artificial and often arbitrary means of guarding against fraudulent claims, we acknowledged that “[t]he essential question is one of proof[.]” (Molien, supra, 27 Cal.3d at pp. 929-930.) Thus, “ ‘[i]n cases other than where proof of
Our reasons for discarding the physical injury requirement in Mo-lien, supra,
c. Likelihood of Cancer in the Future
We next consider whether recovery of damages for emotional distress caused by fear of cancer should depend upon a showing that the plaintiff’s fears stem from a knowledge that there is a probable likelihood of developing cancer in the future due to the toxic exposure. This is a matter of hot debate among the parties and amici curiae. Firestone and numerous amici curiae argue that because fear of cancer claims are linked to a future harm which may or may not materialize, such claims raise concerns about speculation and uncertainty and therefore warrant a requirement that the plaintiff show the feared cancer is more likely than not to occur. Plaintiffs and other amici curiae respond that such a requirement is inappropriate in the context of a mental distress claim, and that there are viable methods, apart from requiring quantification of the cancer risk, to screen claims and determine the reasonableness and genuineness of a plaintiff’s fears.
Plaintiffs favor the approach adopted by the Court of Appeal, which requires the following showing. The toxic exposure plaintiff must first prove the elements of a negligence cause of action. The plaintiff must then establish that his or her fear of cancer is serious, and that the seriousness meets an objective standard (i.e., the distress must be reasonable under the circumstances). Although a plaintiff is not required to establish that the cancer is likely to occur, the finder of fact should consider evidence regarding the likelihood that cancer will occur (i.e., evidence that the disease is only a remote possibility could lead a trier of fact to conclude that a
In affirming the fear of cancer award, the Court of Appeal remarked that “the fact that [plaintiffs’] water supply was contaminated by carcinogens is, by itself, surely a circumstance which is likely to cause emotional distress in most reasonable persons.” (Italics added.) In addition, although the Court of Appeal purported to call for a showing of the actual likelihood that the feared cancer will occur, the court indicated that the absence of such evidence is immaterial where, as here, the trier of fact finds a significantly increased risk of cancer.
We decline to adopt the Court of Appeal’s approach. Although the court properly recognized that a toxic exposure plaintiff is required to establish the reasonableness of his or her fear of cancer,
A carcinogenic or other toxic ingestion or exposure, without more, does not provide a basis for fearing future physical injury or illness which the law is prepared to recognize as reasonable. The fact that one is aware that he or she has ingested or been otherwise exposed to a carcinogen or other toxin, without any regard to the nature, magnitude and proportion of the exposure or its likely consequences, provides no meaningful basis upon which to evaluate the reasonableness of one’s fear. For example, nearly everybody is exposed to carcinogens which appear naturally in all types of foods. Yet ordinary consumption of such foods is not substantially likely to result in cancer. (See Ames & Gold, Too Many Rodent Carcinogens: Mitogenesis Increases Mutagenesis (1990) 249 Science 970, 971, fn. 10 [observing that apples, celery, cоffee, carrots, cauliflower, grapes, honey, orange juice, potatoes and many other common foods naturally produce carcinogenic pesticides that have been found to induce tumors when administered to rodents in large doses].) Nor is the knowledge of such consumption likely to result in a reasonable fear of cancer.
Moreover, permitting recovery for fear of cancer damages based solely upon a plaintiff’s knowledge that his or her risk of cancer has been significantly increased by a toxic exposure, without requiring any further showing
Accordingly, we reject the Court of Appeal’s approach because it attaches undue significance to the mere ingestion of a carcinogen, and because it focuses on the increased risk of cancer in isolation.
We turn now to Firestone’s argument that fear of cancer should be compensable only where the fear is based upon knowledge that cancer is probable, i.e., that it is more likely than not that cancer will develop. In evaluating this argument, we first consider whether it is reasonable for a person to genuinely and seriously fear a disease that is not probable, and if so, whether the emotional distress engendered by such fear warrants recognition as a compensable harm.
We cannot say that it would never be reasonable for a person who has ingested toxic substances to harbor a genuine and serious fear of cancer where reliable medical or scientific opinion indicates that such ingestion has significantly increased his or her risk of cancer, but not to a probable likelihood. Indeed, we would be very hard pressed to find that, as a matter of law, a plaintiff faced with a 20 percent or 30 percent chance of developing cancer cannot genuinely, seriously and reasonably fear the prospect of cancer. Nonetheless, we concludе, for the public policy reasons identified below, that emotional distress caused by the fear of a cancer that is not probable should generally not be compensable in a negligence action.
As a starting point in our analysis, we recognize the indisputable fact that all of us are exposed to carcinogens every day. As one commentator has observed, “[i]t is difficult to go a week without news of toxic exposure. Virtually everyone in society is conscious of the fact that the air they breathe, water, food and drugs they ingest, land on which they live, or products to which they are exposed are potential health hazards. Although few are exposed to all, few also can escape exposure to any.” (Dworkin,
Thus, all of us are potential fear of cancer plaintiffs, provided we are sufficiently aware of and worried about the possibility of developing cancer from exposure to or ingestion of a carcinogenic substance. The enormity of the class of potential plaintiffs cannot be overstated; indeed, a single class action may easily involve hundreds, if not thousands, of fear of cancer claims. (See Willmore, In Fear of Cancerphobia (Sept. 28, 1988) 3 Toxics L. Rptr. (Bur.Nat. Affairs) 559, 563 [hereafter Willmore].)
With this consideration in mind, we believe the tremendous societal cost of otherwise allowing emotional distress compensation to a potentially unrestricted plaintiff class demonstrates the necessity of imposing some limit on the class. (See Borer v. American Airlines, Inc. (1977)
A second policy concern that weighs in favor of a more likely than not threshold is the unduly detrimental impact that unrestricted fear liability would have in the health care field. As amicus curiae California Medical Association points out, access to prescription drugs is likely to be impeded by allowing recovery of fear of cancer damages in negligence cases without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently being prescribed and utilized. New data about potentially harmful effects may not develop for years. If and when negative data are discovered and made public, however, one can expect numerous lawsuits to be filed by patients who currently have no physical injury or illness but who nonetheless fear the risk of adverse effects
Moreover, in Burgess, supra, 2 Cal.4th at pages 1082-1084, we acknowledged the importance of considering the impact of emotional distress liability on the “crisis” in the availability and cost of medical malpractice insurance. Although we were not persuaded in that case that the impact of such liability was sufficient to deny recovery for a mother’s emotional distress arising from the negligent delivery of her baby, we observed, inter alia, that the class of potential plaintiffs in that type of situation was clearly limited. (
In stark contrast to the limited impact of emotional distress liability in the negligent delivery type of situation, fear of cancer liability in the context of physicians prescribing drugs will surely exacerbate the medical malpractice crisis. Specifically, for every patient who might actually develop cancer because of a particular drug, there could be hundreds or thousands of patients who might allege they were negligently prescribed the drug.
A third policy concern to consider is that allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure. That is, to allow compensation to all plaintiffs with objectively reasonable cancer fears, even where the threatened cancer is not probable, raises the very significant concern that defendants and their insurers will be unable to ensure adequate compensation for those victims who actually develop cancer or other physical injuries. Consider, for instance, that in this case damages totalling $800,000 for fear of cancer were awarded to four plaintiffs. If the same recovery were to be allowed in large class actions, liability for this one type of injury alone would be staggering. As one commentator astutely noted: “It would be a regrettable irony if in the rush to compensate the psychically injured we make it impossible to compensate those suffering of permanent and serious physical injuries.” (Will-more, supra, 3 Toxics L. Rptr. at p. 563.)
A fourth reason supporting the imposition of a more likely than not limitation is to establish a sufficiently definite and predictable threshold for recovery to permit consistent application from case to case. (See Thing, supra,
Finally, while a more likely than not limitation may foreclose compensation to many persons with genuine and objectively reasonable fears, it is sometimes necessary to “limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.” (Thing, supra,
Plaintiffs and amici curiae advance several reasons why a more likely than not threshold for fear of cancer claims should be rejected. None is convincing.
First, plaintiffs argue that a more likely than not restriction is unworkable because the risk of contracting cancer from any one source is unquantifiable. In their view; adoption of such a rule would effectively preclude any emotional distress recovery.
We are unpersuaded by this argument because its factual premise appears highly suspect. Although the experts in this case asserted it was impossible to quantify the risk of cancer from any particular toxic exposure, experts in other cases do not share that view. For instance, in Clark v. Taylor (1st Cir. 1983)
Second, plaintiffs and amici curiae point out that while decisions from other jurisdictions have employed a more likely than not limitation for the
We remain unconvinced. Although it is true that the cited cases permitted fear of cancer recovery so long as the plaintiffs’ fears were genuine and reasonable, many of them involved plaintiffs who, in addition to their emotional distress, sustained serious or permanent physical injury as a result of a particular toxic exposure. (Sterling, supra,
Moreover, many of plaintiffs’ cases do not warrant much weight because they were rendered by federal courts and have not been cited by the states whose laws they attempted to apply. For instance, in Moorenovich, supra,
Accordingly, we decline to follow the rationale of the above cases, for to do so would be to ignore substantial public policy concerns.
To summarize, we hold with respect to negligent infliction of emotional distress claims arising out of exposure to carcinogens and/or other toxic substances: Unless an express exception to this general rule is recognized, in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer. The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer.
3. Oppressive, Fraudulent or Malicious Conduct
Plaintiffs argue that if damages for fear of cancer in the absence of physical injury are limited to cases in which the cancer will more likely than
Plaintiffs suggest that the more likely than not threshold should not be applied where a defendant intentionally violates a statute or regulation prohibiting the disposal of toxins. Plaintiffs are quick to point out that the policy concerns for limiting liability in ordinary negligence cases are not triggered in cases involving such defendants.
Althоugh an exception to the general rule appears appropriate, we do not believe it should focus on intentional violators of the law. For one thing, while a defendant may be aware that its conduct is wrong and potentially dangerous, it may not have knowledge of a particular statute or regulation proscribing it. There may be times where a defendant does not specifically intend to violate the law, yet the defendant proceeds to act egregiously in conscious disregard of others.
With these considerations in mind, we conclude it preferable to recognize an exception that focuses on the totality of circumstances in evaluating a defendant’s conduct. Accordingly, we hold that a toxic exposure plaintiff need not meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant’s conduct in causing the exposure amounts to “oppression, fraud, or malice” as defined in Civil Code section 3294, which authorizes the imposition of punitive damages. Thus, for instance, fear of cancer damages may be recovered without demonstrating that cancer is probable where it is shown that the defendant is guilty of “despicable conduct which is. carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1) [defining one type of malice].) “A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences.” (BAJI No. 14.71 (1992 rev.) (7th ed. pocket pt.) [defining “malice”].)
When a defendant acts with oppression, fraud or malice, no reason, policy or otherwise, justifies application of the more likely than not threshold. Any burden or consequence to society from imposing liability is offset by the deterrent impact of holding morally blameworthy defendants fully responsible for the damages they cause, including damage in the form of emotional distress suffered by victims of the misconduct who reasonably fear future cancer.
Once the plaintiff establishes that the defendant has acted with oppression, fraud or malice, the plaintiff must still demonstrate that his or her fear of cancer is reasonable, genuine and serious in order to recover damages. In determining what constitutes reasonable fear, we refer to our previous discussion at part H.A.2.C., ante, in which we observed that it is not enough for a plaintiff to show simply an ingestion of a carcinogen or a significant increase in the risk of cancer. In addition, the plaintiff must show that his or her actual risk of cancer is significant before recovery will be allowed.
To reiterate, in the absence of a physical injury or illness, a plaintiff may recover damages for negligently inflicted emotional distress engendered by a fear of cancer without meeting the more likely than not threshold if the plaintiff pleads and proves that: (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, he or she is exposed to a toxic substance which threatens cancer; (2) the defendant, in breaching its duty to the plaintiff, acted with oppression, fraud or malice as defined in Civil Code
In our view, Firestone’s conduct brings this case within the “oppression, fraud or malice” exception for recovery of fear of cancer damages. The trial court determined that in May of 1977, officials in key management positions at Firestone’s Salinas plant had increased knowledge regarding the dangers involved with the careless disposal of hazardous wastes, and had a specific, written policy for hazardous waste disposal. However, these officials, while professing support for the policy in written distributions, in actuality largely ignored the policy. The court found especially reprehensible the fact that Firestone, through its plant production manager, actively discouraged compliance with its internal policies and California law solely for the sake of reducing corporate costs. Under these circumstances, we believe there are sufficient facts supporting the trial court’s conclusion that such conduct displayed a conscious disregard of the rights and safety of others.
B. Intentional Infliction of Emotional Distress
The trial court ruled that after May 1977, Firestone’s continued dumping of its hazardous wastes at Crazy Horse amountеd to outrageous conduct: “The materials were known to be and specifically designated as hazardous. It was clear that there was a great probability of these materials infiltrating and contaminating neighboring wells. Defendant had to realize that the eventual discovery of such a condition by those drinking the contaminated water would almost certainly result in their suffering severe emotional distress. In fact, with the knowledge that the defendant had at this time there also would have come an understanding of the dangerous condition that had been
The Court of Appeal, relying on Nally v. Grace Community Church of the Valley (1988)
We next consider whether Firestone was properly found liable for intentional infliction of emotional distress, and if not, whether the award for punitive damages is otherwise appropriate.
1. The Christensen Requirements for Intentional Infliction of Emotional Distress
After the Court of Appeal rendered its decision, we issued our opinion in Christensen v. Superior Court, supra,
“The elements of the tort of intentional infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Christensen, supra,
In Christensen, supra, we held that “ ‘[t]he law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant. ’ [Citation.] The only exception to this rule is
Thus, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra,
In this case, it is ambiguous whether the lower courts determined that Firestone’s conduct was directed at these particular plaintiffs in the sense intended by Christensen, supra, 54 Cal.3d at pages 903-906. Although the Court of Appeal correctly rejected Firestone’s contention that Firestone was not liable because it did not know the particular names of any individual whose groundwater was contaminated by the hazardous waste, it is unclear whether it believed that Firestone was actually aware of the presence of these particular plaintiffs and their consumption and use of the water.
Furthermore, it is questionable whether the trial court made a finding that Firestone possessed the requisite knowledge, and if so, whether such a finding would be supported by substantial evidence.
This conclusion is consistent with the result reached in Christensen, supra,
2. Threshold for Recovery
For guidance of the lower courts should the Court of Appeal determine that a retrial on this claim is appropriate, we hold that recovery of fear of cancer damages in actions for intentional infliction of emotional distress should not depend on a showing of a medically corroborated belief that it is more likely than not that the plaintiff will develop the feared cancer as a result of the toxic exposure.
The reasons for not applying the more likely than not threshold are obvious. First, the intentional infliction cause of action requires a showing of “extreme and outrageous conduct” which is directed at the plaintiff. (Christensen, supra,
3. Punitive Damages
As indicated in part II.A.3., ante, we believe there is sufficient evidence to support the trial court’s conclusion that Firestone acted reprehensibly in conscious disregard of the rights and safety of others. But because the trial court was of the view that Firestone’s conduct constituted intentional infliction of emotional distress when it assessed punitive damages against Firestone, and might not have made the award or might have awarded a lesser sum had it not made that finding, that aspect of the judgment should also be reversed. It is not necessary therefore to consider Firestone’s several challenges to the propriety of awarding punitive damages in this case. For guidance of thе court should there be a retrial we note, however, that punitive damages sometimes may be assessed in unintentional tort actions under Civil Code section 3294 (see SKF Farms v. Superior Court (1984)
C. Medical Monitoring Costs
In the context of a toxic exposure action, a claim for medical monitoring seeks to recover the cost of future periodic medical examinations intended to
The trial court awarded medical monitoring damages to plaintiffs, determining that “[s]ince plaintiffs must now live with an increased vulnerability to serious disease it is axiomatic that they should receive periodic medical monitoring in order to determine at the earliest possible time the onset of disease.” The Court of Appeal reversed. Citing Civil Code section 3283,
Firestone and amici curiae urge us to affirm the Court of Appeal judgment in this regard. Essentially, Firestone, amici curiae, and the Court of Appeal assume that the reasonableness of medical intervention, and hence compensability, is dependent upon the sufficiency of proof that the occurrence of the disease is reasonably certain. Firestone points to various cases in other jurisdictions that share similar views. (E.g., Ball v. Joy Manufacturing Co. (S.D.W.Va. 1990)
We are not convinced by these decisions and find the Court of Appeal’s analysis in Miranda v. Shell Oil Co. (1993)
“We have found no authority which limits the applicability of Civil Code section 3333 to those situations where physical injury is evident. Civil Code section 3282 defines ‘detriment’ as ‘a loss or harm suffered in person or property.’ ‘Harm,’ under the Restatement Second of Torts means ‘the existence of loss or detriment in fact of any kind to a person . . . .’ (Rest.2d Torts, § 7, subd. (2), italics added.) The Restatement distinguishes ‘physical harm’ by classifying it as ‘the physical impairment of the human body, or of land or chattels.’ ([Id.,] § 7, subds. (2) and (3).) According to the Restatement’s analysis, a plaintiff is entitled to recover damages from the tortfeasor for all ‘harm’—as opposed to ‘physical harm’—‘past, present and prospective, legally caused by the tort.’ ([Id.,] § 910; see also [id.,] § 7, com. d.; & [id.,] § 917.” (Miranda, supra, 17 Cal.App.4th at pp. 1656-1657.)
In holding that recovery of medical monitoring damages is not contingent upon a showing of a present physical injury or upon proof that injury is reasonably certain to occur in the future, the Miranda court aligned itself with a number of other courts that have considered the issue. (E.g., Ayers, supra,
Like the court in Miranda, supra,
That medical monitoring may be called for as a result of a defendant’s tortious conduct, even in the absence of actual physical injury, was compellingly demonstrated in the case of Friends For All Children, Inc. v. Lockheed Aircraft Corp. (D.C. Cir. 1984)
It bears emphasizing that allowing compensation for medical monitoring costs “does not require courts to speculate about the probability of future
Finally, as Miranda, supra,
In light of the foregoing, we believe the Miranda court’s analysis appropriately recognizes that medical science may necessarily and properly intervene in the absence of physical injury where there is a significant but not
We are confident that our holding will not, as Firestone and amici curiae warn, open the floodgates of litigation. The five factors provide substantial evidentiary burdens for toxic exposure plaintiffs and do not, as Firestone insists, allow medical monitoring damages to be based “solely upon a showing of an increased but unquantified risk resulting from exposure to toxic chemicals.” Moreover, toxic exposure plaintiffs may recover “only if the evidence establishes the necessity, as a direct consequence of the exposure in issue, for specific monitoring beyond that which an individual should pursue as a matter of general good sense and foresight.” (Miranda, supra,
D. Smoking and Comparative Fault
In this case, all four plaintiffs were long-time cigarette smokers. Cigarette smoke evidently contains 40,000 to 60,000 parts per billion (ppb) of benzene—more than 2,500 times the concentration detected in plaintiffs’ contaminated water.
In its statement of decision, the trial court commented: “Defendant points out that plaintiffs have made themselves more susceptible to illness from smoking cigarettes. Although this is no doubt true, it does not relieve defendant from accountability for burdening plaintiffs with a significantly greater vulnerability to serious disease through the ingestion of defendant’s toxins.”
On appeal, Firestone argued that under comparative fault principles, plaintiffs’ smoking should reduce or entirely preclude their recovery for fear of cancer. The Court of Appeal rejected this argument, reasoning: “Comparative fault is applicable only if the plaintiff’s negligence is a proximate cause of the injury. ‘Negligence unrelated to the cause or causes of the accident is not a bar.’ [Citations.] In this case, the fact that [plaintiffs] smoked cigarettes is wholly unrelated to the circumstances which caused [plaintiffs’] water supply to be contaminated with toxics. For comparative
We agree with Firestone that the Court of Appeal erred in its reasoning. Under comparative fault principles, damages are apportioned based upon the various causes contributing to a plaintiff’s harm, as opposed to a particular defendant’s negligence. (Li v. Yellow Cab Co. (1975)
Nonetheless, we agree with the Court of Appeal’s ultimate conclusion that comparative fault principles were not properly invoked in this case. Firestone failed to establish a causal link between plaintiffs’ smoking and the harm they suffered, i.e., their fear of a significantly increased risk of cancer. As plaintiffs point out, Firestone apparently introduced no evidence at trial suggesting that any portion of plaintiffs’ fear was attributable to their own smoking.
In other cases, however, when a defendant demonstrates that a plaintiff’s smoking is negligent and that a portion of the plaintiff’s fear of developing cancer is attributable to the smoking, comparative fault principles may be applied in determining the extent to which the plaintiff’s emotional distress damages for such fear should be reduced to reflect the proportion of such damages for which the plaintiff should properly bear the responsibility. (See Li, supra,
Finally, we also observe that evidence of smoking by a plaintiff is relevant to whether the plaintiff’s fear is reasonable and genuine. Thus, if a plaintiff had smoked heavily for 20 years without fearing cancer, the trier of fact may
III.
Disposition
The judgment of the Court of Appeal is reversed insofar as it affirms the award of punitive damages and the award of damages for plaintiffs’ fear of cancer, and reverses the award for future medical monitoring. The cause is remanded to the Court of Appeal for further proceedings consistent with this opinion, that may include, if appropriate, a remand to the trial court for a retrial on the above damages, a remand for a retrial on the issue of Firestone’s liability for intentional infliction of emotional distress, and/or consideration of issues that were not heretofore reached by the Court of Appeal.
Lucas, C. J., Panelli, J., and Arabian, J., concurred.
Notes
The court determined that these damages were separate and distinct from plaintiffs’ basic fear of developing cancer or other serious physical illnesses in the future.
This award reflected the necessity for plaintiffs to shower elsewhere, use bottled water, and submit to intrusions by numerous agencies involved in testing water and soil.
The trial court ruled that damages for injury to plaintiffs’ property were within the scope of a separate inverse condemnation action.
Essentially, Firestone asserts that if we reverse the $800,000 fear of cancer award, we should reverse the award of $269,500 for psychiatric illness for the same reasons. The trial court, however, deemed such damage separate and distinct from plaintiffs’ fear of cancer. Firestone fails to explain the nature of the psychiatric illness award and neglects to provide any argument as to why the two awards should be treated the same.
Some commentators and courts have referred to claims for “fear of cancer” as “cancer-phobia” claims. (See Sterling v. Velsicol Chemical Corp. (6th Cir. 1988)
Although fear of cancer damages were not specifically at issue, one California court affirmed an award of personal injury damages in an X-ray burn case where the jury was permitted to consider medical testimony that the plaintiff was in danger of developing a cancer upon the scars of her X-ray bums. (Coover v. Painless Parker, Dentist (1930)
In Barth, an employee brought a class action on behalf of himself and other employees against Firestone, the same defendant here, alleging claims including fraudulent concealment, battery and emotional distress arising out of alleged exposure to toxic substances. Although the employee did not allege any symptom of injury that could be clinically diagnosed, he did allege (1) an injury to his immune system that rendered him “more susceptible to developing various forms of cancer”; and (2) an injury based on an “increased risk” of contracting cancer. (
Although the trial court did find that plaintiffs currently face an unquantified enhanced risk of developing disease, the Court of Appeal held that an increased risk of disease is not a present physical injury and is not compensable unless there is evidence that it is probable that the disease will occur. (See fn. 15, post, and cases cited therein.) This issue is not before us since plaintiffs have not challenged the Court of Appeal’s ruling in this regard.
Specifically, Water Code section 13350, subdivision (a), prohibits deposit of waste where it is discharged into the waters of the state in violation of any waste discharge requirement, order, or prohibition of a regional water quality control board. “Waters of the state” include underground water. (Wat. Code, § 13050.) The substances sent to Crazy Horse by Firestone were prohibited under the classification established by the Department of Water Resources in 1966. Among the purposes for the classification was minimizing migration of leachates from Crazy Horse toward the groundwater basin and degrading nearby domestic wells.
Indeed, precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable. (See Acadia, California, Ltd. v. Herbert (1960)
We note that one California court, in the context of products liability, denied recovery for fear of future injury to a plaintiff who had received an artificial heart valve implant that was operational but was discovered to have a high statistical rate of failure. (Khan v. Shiley Inc. (1990)
A plaintiff may only recover for emotional distress that is serious. (Molien, supra, 27 Cal.3d at pp. 929-930.) Serious emotional distress is such that “ ‘a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ” (Id., at p. 928, quoting Rodrigues, supra,
For example, numerous lawsuits were brought by those who ingested or whose mothers ingested the prescription drug diethylstilbestrol (DES). (E.g., Brown v. Superior Court (1988)
In Burgess, supra,
An increased risk claim generally refers to a plaintiff who, as a result of a toxic exposure, suffers no presently existing physical injury but faces an increased risk of developing cancer or other illness in the future. The vast majority of courts that recognize increased risk claims require the plaintiff to demonstrate an actual risk or probability of developing cancer or other illness in the future as a result of the exposure. “While it is unnecessary that the medical evidence conclusively establish with absolute certainty that the future disease or condition will occur, mere conjecture or even possibility does not justify the court awarding damages for a future disability which may never materialize.” (Sterling, supra,
As indicated in footnote 8, ante, the Court of Appeal in this case made a holding to the same effect.
Another case cited by Justice George in his concurring and dissenting opinion also involved plaintiffs with permanent physical injuries. (Cone. & dis. opn. of George, J., post, at p. 1026, citing Cantrell v. GAF Corp. (6th Cir. 1993)
Furthermore, Justice George’s reliance on two other cases is misplaced. First, in Merry v. Westinghouse Electric Corp. (M.D.Pa. 1988)
In Sterling, supra,
AIthough amici curiae in support of plaintiffs rely in large part upon fear of cancer cases decided in the context of serious оr permanent physical injury, they also discuss several cases in which physical injury apparently was lacking. (Wilson, supra,
We note that the terms “significant risk” and “no significant risk” have been specifically defined in different environmental statutes and regulations for various purposes. (See, e.g., Cal. Code Regs., tit. 22, §§ 12701-12721 [defining “no significant risk” with respect to notice requirements under the Safe Drinking Water and Toxic Enforcement Act of 1986, Health & Saf. Code, § 25249.5 et seq.].) Because these statutes and regulations do not pertain to recovery of fear of cancer damages, their definitions are not relevant on the issue of significant risk in this context.
Civil Code section 3294 requires a plaintiff to prove oppression, fraud or malice by “clear and convincing evidence” for purposes of punitive damages recovery. We decline to impose this stringent burden of proof for recovery of fear of cancer damages in negligence cases for two reasons. First, we have already adopted strict limitations on the availability of damages for negligently inflicted fear of cancer; an additional hurdle at this point is unnecessary for public policy purposes. Second, to recover compensatory damages in an action for intentional infliction of emotional distress, a plaintiff need only prove the fact that a defendant intentionally inflicted such distress by a preponderance of the evidence. It is therefore both logical and consistent to utilize the same burden of proof for recovery of compensatory damages when a defendant has acted with “oppression, fraud or malice” to negligently inflict emotional distress.
Although this case falls within the oppression, fraud or malice exception announced above, any award of fear of cancer damages will still depend on whether plaintiffs’ fears are reasonable with reference to the actual likelihood of cancer due to the toxic exposure.
Firestone asserts in its brief on the merits that there is no evidence in the record showing that it knew of anyone living near Crazy Horse or that it had any interaction with plaintiffs. Plaintiffs do not specifically contest these assertions. Rather, they point out that Firestone was informed that Crazy Horse was not equipped to prevent toxins from leaching into the groundwater, that Firestone agreed not to send any toxic materials to the landfill, and that dеspite its knowledge that the reason for the no toxic requirement was to protect “plaintiffs’ water source,” Firestone chose to return the toxins to Crazy Horse where they found their way into the water source.
CiviI Code section 3283 provides: “Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future.”
Civil Code section 3333 sets forth the measure of damages applicable to tortious conduct: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”
The court in Ayers phrased the test slightly differently: “[T]he cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity
The court in Friends For All Children posed the following hypothetical situation to illustrate the true nature of medical monitoring damages. “Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations. [¶] From our example, it is clear that even in the absence of physical injury Jones ought to be able to recover the cost for the various diagnostic examinations
Firestone complains that a deep-pocket defendant should not be forced to finance a plaintiff’s long-term health care needs where the plaintiff has a preexisting health condition from having voluntarily exposed himself or herself to far larger quantities of carcinogens, for example, by smoking. (See pt. II.D., post.) While there is no question that a defendant ought not to be liable for medical monitoring of a plaintiff’s preexisting condition that is unaffected by a subsequent toxic exposure nеgligently caused by the defendant, we see no reason why the defendant should not be held responsible for any increased or different monitoring of the preexisting condition (whether or not the preexisting condition is caused by the plaintiff’s voluntary conduct) where necessitated as a direct result of the subsequent exposure.
Various commentators and courts have suggested that creation of court-supervised funds to pay medical monitoring claims as they accrue, rather than the award of a lump-sum verdict, may be a more appropriate mechanism for compensating plaintiffs in a toxic exposure case. (See generally, McCarter, Medical Sue-Veillance: A History and Critique of the Medical Monitoring Remedy in Toxic Tort Litigation (1993) 45 Rutgers L.Rev. 227, 253-264, and cases cited therein.)
In Ayers, supra,
According to plaintiffs’ evidence, the average concentration of benzene was 19.46 ppb in the Potters’ well and 19.38 ppb in the Plescias’ well.
Unlike the cases relied upon by Firestone and amici curiae (see, e.g., Brisboy v. Fibreboard Corp. (1988)
Firestone additionally argues that an award for medical monitoring costs to a plaintiff who smokes should also be reduced to take into account the plaintiff’s smoking. As indicated in part II.C., ante (fn. 27), even if a defendant negligently exposes a smoker to toxins that significantly increase the smoker’s risk of cancer, that defendant is not liable for reasonably certain future medical monitoring costs unless the recommended monitoring calls for tests or examinations that are in addition to or different from the type of mоnitoring that the smoker should prudently undertake regardless of the subsequent toxic exposure. However, if additional or different tests and examinations are necessitated as a result of the toxic exposure caused by the defendant, then the defendant bears full responsibility for their costs. The costs of additional or different monitoring made necessary by the defendant’s conduct should not have to be shared by the plaintiff since the plaintiff already remains responsible for any monitoring that is shown to be medically advisable due solely to his or her smoking or other preexisting condition.
Concurrence Opinion
I concur in the majority opinion to the extent it recognizes a cause of action in negligence for causing fear of cancer in the absence of a claim of physical injury or disease. I also concur in the majority opinion’s treatment of Firestone’s comparative fault claim, and I concur in the opinion to the extent it reverses the judgment of the Court of Appeal on the cause of action for medical monitoring costs.
I disagree with the majority in two respects. First, I agree with Justice George’s contention that when a defendant negligently exposes a plaintiff to carcinogenic toxins, plaintiff’s recovery for resulting fear of cancer should not depend on proof that it is probable the cancer will actually occur. As Justice George demonstrates, under settled tort principles, proof of the emotional damage flowing from defendant’s negligent act should not depend on proof of the probable occurrence of the disease.
We recently restated the elements of a cause of action for intentional infliction of emotional distress. They are: “(i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress.” (Nally v. Grace Community Church (1988)
This case falls into the category of “reckless disregard of the probability of causing emotional distress.” As the Court of Appeal observed, the defendants knew that the wastes they deposited at the Crazy Horse dump would pose a health hazard to аnyone near the dump. The defendants were aware that it was prohibited to dump toxic waste at the Crazy Horse dump because of the danger such waste would leach into and contaminate the groundwater. They agreed not to dump toxic wastes at the dump, but, knowing of the danger to users of the local water supply, they nevertheless intentionally dumped carcinogenic toxic waste there. Thus defendants created a probability that once their illegal and ultrahazardous conduct was discovered, it would cause emotional distress to those who used the local water supply. It seems clear that this conduct meets the definition of reckless conduct in the context of the tort of intentional infliction of emotional distress.
The majority, however, relying on this court’s misguided discussion in Christensen, supra,
The Restatement Second of Torts explains that intentional infliction of emotional distress may be actionable when defendant’s conduct is reckless: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress . . . .” (Rest.2d Torts, § 46.) A comment to this section explains: “The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.” (Rest.2d Torts, supra, § 46, com. i, p. 77, italics added.)
Section 500 defines reckless disregard of the safety of others as: “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” (Rest.2d Torts, supra, § 500.) Although the culpable act must be intentional, “the actor does not intend to cause the harm which results from it. It is enough that he realizes or from facts which he knows, should realize that there is a strong probability that harm may result. . . .” (Rest.2d Torts, supra, § 500, com. f, p. 590, italics added.)
Most significantly, the Restatement would not requirе that the actor be aware that any particular person is in the zone of danger caused by the culpable act: “If the actor’s conduct is such as to involve a high degree of risk that serious harm will result from it to anyone who is within range of its effect, the fact that he knows or has reason to know that others are within such range is conclusive of the recklessness of his conduct toward them. It is
Under these standards, there should be no requirement that plaintiffs show that defendants were aware of their individual existence or that defendants directed their hazardous conduct against identifiable persons in particular. Defendants should have realized the probability that their hazardous conduct would cause emotional distress, and they must be charged with knowledge that there was a strong probability that others would come within the zone of danger of their conduct. They knew the reason that their conduct was prohibited was to protect all persons who lived near the dump.
Accordingly, I would affirm the judgment of the Court of Appeal with respect to the cause of action for intentional infliction of emotional distress.
Concurrence Opinion
I concur in the judgment and in much of the reasoning of the majority opinion. In particular, I agree with the majority that recovery of fear-of-cancer damages in toxic exposure cases not involving immediate physical injury should be subject to the following conditions: When a defendant has caused the plaintiff to unknowingly ingest toxic chemicals by an act or omission that is merely negligent, the plaintiff may recover damages for emotional distress caused by fear of future cancer only upon proof of a more-than-even chance that cancer will actually develop. But when the defendant has acted with conscious disregard of the plaintiff’s health and safety—and thereby demonstrated a level of moral culpability significantly beyond mere negligence—then the plaintiff may recover fear-of-cancer damages whenever the plaintiff’s resulting emotional distress is genuine, serious, and reasonable.
My disagreement with the majority is only about the legal pigeonhole in which to situate the liability imposed in the latter situation. The majority places this liability within the tort of negligence, even though proof of malice will be indispensable to recovery for emotional distress, which may be the plaintiff’s only compensable injury. This seems to me a poor fit at best, and one that cannot long endure. Surely the law of negligence, and especially its rules for recovery of emotional distress damages, are complicated enough without establishing a subspecies of negligence liability requiring proof of malicious conduct. The goal of simplicity and clarity in the law would be better served, in my view, by placing the liability for maliciоusly caused fear of cancer somewhere within the family of intentional or quasi-intentional torts.
Justice Traynor, writing for a majority of this court, has explained that “[n]egligence is an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable [person] under similar circumstances would exercise to protect others from harm.” (Donnelly v. Southern Pacific Co. (1941)
This description of willful misconduct corresponds closely to the majority’s description of behavior for which fear-of-cancer damages are recoverable absent both physical injury and a probability that cancer will result. The majority explains that “fear of cancer damages may be recovered without demonstrating that cancer is probable where it is shown that the defendant is guilty of ‘despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ (Civ. Code, - § 3294, subd. (c)(1) [defining one type of ‘malice’].) ‘A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences.’ (BAJI No. 14.71 (1992 rev.) (7th ed. pocket pt.) [defining ‘malice’].)” (Maj. opn., ante, p. 998; see also, Taylor v. Superior Court (1979)
Thus, the tort of willful misconduct seems to me an appropriate home for the liability that the court tоday recognizes for malicious contamination of a substance or substances likely to be consumed by others. Certainly, the tort
The existence of a substantial body of legislation designed to protect the public from exposure to toxic substances could provide a basis for liability. As section 874A of the Restatement Second of Torts explains: “When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.” Applying this principle, courts may use a legislative prohibition as the basis for recognizing a new intentional tort, or for expanding the scope of an existing intentional tort to cover the prohibited conduct. (See Smith v. Superior Court (1984)
Recognition of a new tort would be consistent also with section 870 of the Restatement Second of Torts, which provides: “One who intentionally causes injury to another is subject to liability to the other for that injury, if his [or her] conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor’s conduct does not come within a traditional category of tort liability.” The liability contemplated by this section is not confined to defendants who have acted for the very purpose of inflicting harm. Rather, a defendant is understood to “intend” a harm if the defendant knows or believes that the harm is certain, or substantially certain, to result from the defendant’s act. (Rest.2d Torts, § 870, com. b, p. 280.) Thus, it would be consistent with this section to recognize a new category of intentional tort liability for cases such as this one in which the defendant must have known that its improper and unlawful handling of toxic wastes would result in contamination of groundwater and eventually pose a significant threat to the health of those who, like plaintiffs, relied upon the groundwater for their domestic water needs.
The existing tort of nuisance is also available for cases, like this one, in which the improper handling of toxic wastes has contaminated a property owner’s source of drinking water. (See Carter v. Chotiner (1930)
Although this court has said that negligence and willful misconduct are “mutually exclusive” (Lynch v. Birdwell (1955)
The element of “probable dangerous consequences” referred to in the BAJI instruction quoted by the majority corresponds to that part of the test for willful misconduct requiring that serious injury be a “probable, as distinguished from a possible, result” (Williams v. Carr, supra,
Concurrence Opinion
I concur in the majority’s conclusion that plaintiffs may recover from Firestone for the emotional distress they have suffered as a result of their fear of developing cancer because of Firestone’s egregious misconduct in the disposal of its toxic waste. I dissent, however, from the majority opinion insofar as it holds that plaintiffs would not be entitled to recover for their emotional distress had defendant simply been negligent in contaminating plaintiffs’ water supply.
As I shall explain, I believe the majority opinion has departed from well-established tort principles—long recognized in California—in holding that, when a defendant negligently contaminates another person’s water supply, subjecting that person to the risk of personal injury or illness, the victim of this contamination may recover for the emotional distress reasonably suffered by the fear of incurring such injury or illness only if the victim can establish that he or she is "more likely than not” to develop the injury or illness.
As the majority opinion recognizes, a reasonable person who has consumed, cooked with, and bathed in water that has been contaminated by toxic waste is likely to sustain serious emotional distress relating to the fear of developing a serious illness in the future, not only when the person’s chance of developing an illness is more than 50 percent, but also when his or her chance of developing the illness is considerably lower, for example, “only” 25 or 30 percent. In denying recovery to such a victim, despite the circumstance that—because of the risk of personal harm engendered by the defendant’s negligent conduct—a person of ordinary sensibilities in the victim’s position reasonably would suffer serious emotional distress, the majority opinion eliminates an important legal protection to which all persons, including victims of toxic waste exposure, long have been entitled.
In explaining its rationale for establishing a novel, high threshold—“more likely than not”—for recovery for emotional distress in this setting, the majority opinion suggests that, in the case of “toxic torts,” a variety of “public policy” reasons support its departure from generally governing legal
In past decisions, this court has taken into account the danger that potentially disproportionate liability might be imposed when the issue presented was whether, and under what circumstances, a defendant who negligently injured one person should be held liable for the emotional distress suffered by other persons by reason of their concern over the condition of the injured person. The majority opinion in the present case, however, is the first to invoke such a rationale to limit recovery by persons who, as result of a defendant’s negligence, have been made to suffer the risk of personal physical injury or illness and who, as a consequence, reasonably have incurred emotional distress arising out of concern for their own health and safety. I believe there is no justification for limiting the recovery to which this class of persons is entitled, simply because the defendant’s wrongful conduct has endangered the personal safety of a large number of invididuals.
Finally, the majority’s determination to embrace this novel, restrictive approach is all the more difficult to understаnd in that the majority’s formulation is at odds with most of the decisions from other jurisdictions that have addressed this very issue in the arena of toxic torts and fear of cancer. As discussed below, numerous federal and sister-state decisions demonstrate that the policy reasons offered by the majority in support of its “more likely than not” threshold standard appropriately may be invoked when a plaintiff seeks compensation for what, in contrast, are essentially future damages (e.g., future medical expenses, loss of earnings, diminished life expectancy), for an illness or disease that may (or may not) develop in the future. As these out-of-state decisions explain, however, considerations such as those invoked by the majority do not justify the adoption of a stringent standard when a plaintiff simply seeks to recover present damages for the serious emotional distress that he or she already has suffered, reasonably and foreseeably, because of the substantial risk to the plaintiff’s health posed by the defendant’s negligence.
I
Well over half a century ago, this court recognized a plaintiff’s right to recover damages for fright, shock, and nervous distress when the negligent conduct of a defendant places the plaintiff personally at risk, causing the plaintiff reasonably to fear for his or her own safety, even in the absence of any injurious impact. (See, e.g., Webb v. Francis J. Lewald Coal Co. (1931)
Thus, for example, if an automobile driver negligently speeds by a pedestrian in a crosswalk, narrowly missing the pedestrian but causing him or her reasonably to suffer serious emotional distress as a result of the encounter, the pedestrian is entitled to recover damages for reasonable emotional distress, even though the driver’s conduct, while posing a risk of personal harm to the pedestrian, did not in fact inflict any direct physical injury. As this example illustrates, under traditional negligence principles a plaintiff’s right to recover damages for emotional distress sustained as a result of fear or concern for his or her own health and safety does not depend upon whether the plaintiff actually incurred a physical injury (or disease) as a result of the defendant’s conduct. Rather, so long as the defendant has breached a duty of care owed to the plaintiff, thereby subjecting the plaintiff to an unreasonable risk of personal injury or illness, and the defendant’s conduct is of such a nature that a reasonable person, in the plaintiff’s position, would sustain serious emotional distress as a result of such conduct, the plaintiff who in fact sustains such emotional distress generally is entitled to recover damages for that distress.
In the present case, Firestone’s wrongful dumping of toxic substances resulted in the contamination of plaintiffs’ property аnd well water, and led
Under these circumstances, the general tort principle set forth above— authorizing recovery for emotional distress when a plaintiff is personally endangered by a defendant’s negligent conduct and suffers serious emotional distress out of fear for his or her own safety—directly supports plaintiffs’ right to recover damages for the serious emotional distress they reasonably sustained, emanating from concern for their own health.
Furthermore, past decisions of this court—applying general principles from the law of nuisance and trespass—similarly have held that, when a defendant tortiously interferes with the water supply to another person’s property, the person whose water supply has been impaired is entitled to recover for emotional distress resulting from the tortious conduct, without regard to whether he or she has sustained any actual physical injury. As this court explicitly declared in Acadia, California, Ltd. v. Herbert (1960)
II
The majority acknowledges that Firestone, in negligently disposing of its toxic waste at a facility from which such waste was banned, breached the duty of care it owed to plaintiffs, who resided on property in the vicinity оf the site of the waste disposal. And the majority also acknowledges that a reasonable person whose water supply has been contaminated by toxic waste is likely to suffer serious emotional distress arising out of fear for his or her own health, even though there is considerably less than a 50 percent likelihood that the toxic waste to which the victim was exposed will in fact cause him or her to contract cancer or some other serious disease. Nonetheless, the majority deliberately limits the class of persons who can recover for the serious emotional distress they have suffered to the very small class of persons who can prove it is “more likely than not” that they will contract such a disease as a result of the defendant’s conduct, denying recovery to the much greater number of persons who have sustained serious emotional distress but who have “only,” for example, a 25 or 30 percent chance of contracting the disease.
As noted earlier, the majority cites a variety of “public policy” considerations in support of its “more likely than not” standard, arguing that a less stringent standard will result in a potentially unrestricted plaintiff class at a “tremendous societal cost” that, in turn, will (1) limit the availability and affordability of liability insurance for toxic liability risks, and (2) impede access to prescription drugs because of a possible proliferation of “fear of cancer” claims by the users of such medications. But these reasons amount to no more than an asserted need to restrict the potential “unlimited” liability that otherwise might burden a “toxic tort” defendant, because of the number of persons who may be adversely affected by the improper handling of toxic waste. Thus, the essence of the policy reasons invoked by the majority is a fear that, in toxic tort cases, negligent defendants may have endangered so many persons that permitting recovery under ordinary negligence standards may impose an onerous risk of liability upon these defendants. Under well-established negligence principles, however, a defendant’s liability for a particular category of negligent conduct does not contract as the number of persons injured increases. In my view, it is unfair to plaintiffs in the present
Past decisions limiting the class of persons who may recover damages for emotional distress generally have involved claimants who have suffered by reason of an injury caused to another person. (See, e.g., Thing v. La Chusa (1989)
These concerns are inapplicable in the present case, however, where the potential class of plaintiffs is limited to those persons who directly and personally were placed at risk by Firestone’s negligent course of conduct. In other situations in which a defendant’s negligence has injured or placed at risk a large number of persons (for example in an airplane crash or in other “mass tort” settings), we have not limited recovery for damages for emotional distress that reasonably has been suffered by those persons.
Indeed, in cases in which a plaintiff seeks to recover for emotional distress relating to fear for his or her own safety, there is no need to create a novel, artificial barrier in order to avoid an unwarranted expansion of emotional distress claims—as the majority opinion does in adopting its “more likely than not” standard—because reasonable restraints upon such claims already are subsumed under negligence principles generally applicable in this area of the law. As previously explained, to be entitled to recover such damages in these circumstances, a plaintiff must demonstrate not merely that he or she suffered some degree of emotional distress, but rather that the distress rose to the level of serious emotional distress. (Molien v. Kaiser Foundation Hospitals, supra, 21 Cal.3d at pp. 928-930; Burgess v. Superior Court (1992)
I note that we have affirmed the reliability of the “substantial” factor test as a means of establishing and delimiting liability in other contexts of tort law. For example, in Mitchell v. Gonzales (1991)
In sum, because the generally applicable tort principles have been fashioned so as to avoid imposition of unlimited or undue liability for emotional distress claims made by persons who physically have been endangered by a defendant’s negligent conduct, there is, in my opinion, no justification for the majority opinion’s holding saddling direct victims of toxic exposure with an additional and onerous “more likely than not” standard, a threshold that, as a practical matter, is likely to constitute a barrier barring recovery for even the most extreme and reasonably sustained emotional distress, in virtually all cases in which a disease possessing a lengthy latency period has not yet manifested itself.
Ill
In adopting a “more likely than not” standard as a severe limitation upon the right of toxic-tort victims to obtain compensation for the emotional distress they reasonably and foreseeably suffer as a result of concern for their health and safety, the majority opinion declines to follow a substantial
Numerous federal and out-of-state authorities recognize that the tort of negligent exposure to toxic substances gives rise to two completely distinct types of claims for compensatory damages: (1) one involving the increased risk of developing a disease in the future, and (2) the other, typified in the case before us, involving the present injury of emotional distress, engendered by the claimant’s knowledge that he or she has ingested a harmful substance (referred to as a claim premised upon “fear of cancer”). The United States Sixth Circuit Court of Appeals recently stated: “A real distinction can be drawn between the possibility of recovery for increased risk of cancer and that for increased fear of cancer .... [Fear of cancer] is a claimed present injury consisting of mental anxiety and distress over contracting cancer in the future, as opposed to increased risk of cancer, which is a potential physical predisposition of developing cancer in the future.” (Cantrell v. GAF Corp. (6th Cir. 1993)
Almost without exception, courts have required, as a prerequisite to recovery on an “increased risk” claim, that the plaintiff establish “to a reasonable medical certainty”—or that it is “more likely than not”—that the plaintiff actually will develop the disease in the future. (See, e.g., Abuan v. General Electric Co. (9th Cir. 1993)
With respect to a claim for emotional distress involving fear of cancer, however, the majority of jurisdictions and legal commentators recognize that a “more likely than not” threshold standard is not applicable; rather, a plaintiff’s likelihood of actually developing the feared disease simply is one relevant factor in assessing the reasonableness of his or her claim. (See Cantrell v. GAF Corp., supra, 999 F.2d at p. 1012; Sterling v. Velsicol Chemical Corp., supra,
This now well-accepted principle was stated in Sterling v. Velsicol Chemical Corp., supra,
Following an extensive review of decisions in other jurisdictions, the authors Schwartzbauer and Shindell, in Cancer and the Adjudicative Process: The Interface of Environmental Protection and Toxic Tort Law (1988) 14 Am.J.L. & Med. 1, conclude at page 43: “If the anxiety is both genuine and non-trivial, a plaintiff ought not be denied a recovery merely because the chance that the future consequence will develop is forty-nine percent rather than fifty-one percent. The ‘more-likely-than not’ test is used to determine whether to compensate for the future consequence itself; not for the present fear of such a future consequence.” (Italics added.)
IV
The majority’s creation of a novel, unrealistically high threshold standard for recovery for serious emotional distress, reasonably and foreseeably suffered by plaintiffs as the result of Firestone’s negligent contamination of their well water, constitutes an unwarranted deviation from tort principles well established under the decisional law of California and other jurisdictions. In my view, this deviation is directly contrary to, rather than in furtherance of, established public policy in the area of toxic exposure.
Accordingly, I would affirm the trial court’s award of emotional distress damages in favor of plaintiffs.
In Molieti v. Kaiser Foundation Hospitals (1980)