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Potter v. Firestone Tire & Rubber Co.

Supreme Court of California

December 27, 1993, Decided

No. S018831.


 [*973]  [**800]  [***555]    We granted review in this case to consider:

(1) whether 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 [****4]  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, 54 Cal.3d 868, precludes any liability for intentional infliction [****5]  of emotional distress in the absence of a determination that Firestone's extreme and outrageous conduct was directed at plaintiffs or undertaken with knowledge of their presence and consumption of the groundwater, and with knowledge of a substantial certainty that they would suffer severe emotional injury upon discovery of the facts.

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6 Cal. 4th 965 *; 863 P.2d 795 **; 25 Cal. Rptr. 2d 550 ***; 1993 Cal. LEXIS 6375 ****; 93 Daily Journal DAR 16566; 93 Cal. Daily Op. Service 9695

FRANK POTTER et al., Plaintiffs and Respondents, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant.

Prior History:  [****1]  Superior Court of Monterey County, No. 81723, Robert A. O'Farrell, Judge.

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.


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Torts, Remedies, Damages, General Overview, Types of Negligence Actions, Negligent Infliction of Emotional Distress, Types of Losses, Pain & Suffering, Emotional Distress, Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Torts, Elements, Affirmative Duty to Act, Types of Special Relationships, Water Quality, Physical Injuries, Potential Plaintiffs, Civil Procedure, Punitive Damages, Types of Damages, Punitive Damages, Elements, Duty, Compensatory Damages, Proof, Evidence, Burdens of Proof, Intentional Torts, Intentional Infliction of Emotional Distress, Medical Expenses, Real Property Law, Torts, Defenses, Comparative Fault, Evidence, Relevance, Relevant Evidence