holding that “the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable”
How later courts described this case
- holding that “the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable”
- holding that a defendant’s conduct creating the need for future medical monitoring “does not create a new tort. It is simply a compensable item of damage when liability is established under traditional tort theories of recovery.”
- ruling that duty existed in a negligent infliction of emotional distress action where plaintiffs fear of cancer was proximately caused by defendant’s statutory violations because the breach threatened serious physical injury
- holding that landowners' reasonably certain need for medical monitoring as a result of their exposure to toxic wastes from a neighboring landfill is an item of damage for which compensation may be allowed
Written by the judges who cited it.
Later courts went against this
Declined to follow by Boryla v. Pash, 1998 Colo. J. C.A.R. 3040 (1998)
Dr. Pash urges us to adopt the standard enunciated in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 816 (1993), to preclude Boryla’s fear of cancer claim.9 We decline to adopt this standard.
Distinguished
Distinguished by Erlich v. Menezes, 87 Cal. Rptr. 2d 886 (1999)
Potter, a toxic tort case, is readily distinguishable.
The opinion
KENNARD, J., Concurring and Dissenting.
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 maliciously caused fear of cancer somewhere within the family of intentional or quasi-intentional torts.
*1016 Among the existing tort categories, liability for maliciously induced fear of cancer fits most comfortably within the tort of willful misconduct. 1 This is “a tort separate and distinct from negligence and involves different principles of liability and different defenses.” (Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 195 [ 52 Cal.Rptr. 817 ]; see Shepardson v. McLellan (1963) 59 Cal.2d 83, 89 [ 27 Cal.Rptr. 884 , 378 P.2d 108 ]; Savage v. Van Marie (1974) 39 Cal.App.3d 241, 245 [ 114 Cal.Rptr. 51 ].) “[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.” (Williams v. Carr (1968) 68 Cal.2d 579, 584 [ 68 Cal.Rptr. 305 , 440 P.2d 505 ]; see also Goncalves v. Los Banos Mining Co. (1962) 58 Cal.2d 916, 918 [ 26 Cal.Rptr. 769 , 376 P.2d 833 ]; Bastían v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 533 [ 245 Cal.Rptr. 78 ]; Prosser & Keeton on Torts (5th ed. 1984) § 34, pp. 212-214.) Willful misconduct, like negligence, is subject to the rule of comparative fault. (Southern Pac. Transportation Co. v. State of California (1981) 115 Cal.App.3d 116, 121 [ 171 Cal.Rptr. 187 ]; Sorensen v. Allred (1980) 112 Cal.App.3d 717, 725 [ 169 Cal.Rptr. 441 , 10 A.L.RAth 937].)
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) 18 Cal.2d 863, 869 [ 118 P.2d 465 ].) “A negligent person,” in other words, “has no desire to cause the harm that results from his [or her] carelessness . . . .” (Ibid.) By contrast, an act performed with an intent to cause harm is termed “willful.” “Willfulness and negligence are contradictory terms. ... If conduct is negligent, it is not willful; if it is willful, it is not negligent.” (Ibid., citations omitted; accord, Lambreton v. Industrial Acc. Com. (1956) 46 Cal.2d 498, 503 [ 297 P.2d 9 ]; Tognazzini v. Freeman (1912) 18 Cal.App. 468, 473-474 [ 123 P. 540 ]; see also Arvin- Kern Co. v. B. J. Service, Inc. (1960) 178 Cal.App.2d 783, 792 [ 3 Cal.Rptr. 238 ].)
*1017 Between these two clearly distinguishable forms of behavior—negligence and willfulness—we find what is now generally known as willful misconduct. Justice Traynor described the tort this way: “A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he [or she] knows, or should know, it is highly probable that-harm will result. . . . Such a tort has been labeled ‘willful negligence,’ ‘wanton and willful negligence,’ ‘wanton and willful misconduct,’ and even ‘gross negligence.’ It is most accurately designated as wanton and reckless misconduct. It involves no intention ... to do harm, and it differs from negligence in that it does involve an intention to perform an act that the actor knows, or should know, will very probably cause harm.” (Donnelly v. Southern Pacific Co., supra, 18 Cal.2d 863, 869 , citations omitted.) 2
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) 24 Cal.3d 890, 895-896 [ 157 Cal.Rptr. 693 , 598 P.2d 854 ].) 3
Thus, the tort of willful misconduct seems to me an appropriate home for the liability that the court today recognizes for malicious contamination of a substance or substances likely to be consumed by others. Certainly, the tort *1018 of willful misconduct would be a more appropriate home than the tort of negligence. But there is another possibility worthy of mention.
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) 151 Cal.App.3d 491, 497-500 [ 262 Cal.Rptr. 754 ] [intentional spoliation of evidence]; Middlesex Ins. Co. v. Mann (1981) 124 Cal.App.3d 558, 570 [ 177 Cal.Rptr. 495 ] [violation of fiduciary duty]; Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 6 [ 86 Cal.Rptr. 417 ] [unfair collection practice]; Laczko v. Jules Meyers, Inc. (1969) 276 Cal.App.2d 293, 295 [ 80 Cal.Rptr. 798 ] [tampering with vehicle odometer].) Here, defendant’s flagrant and willful violation of environmental laws and regulations designed to protect public health could provide the impetus for recognition of a new tort of malicious toxic contamination. The increasing incidence of such behavior, an unfortunate byproduct of our society’s dependence on toxic chemicals, warrants the specific public and legal attention that a new tort category would provide.
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.
*1019 Either of these alternative approaches would be preferable to creating, as the majority has done, a new subcategory within the tort of negligence for malicious toxic contamination that results in genuine, serious, and reasonable fear of cancer. The majority properly recognizes and applies the principle that greater moral fault justifies increased liability for resulting harm (see generally, Bauer, The Degree of Moral Fault as Affecting Defendant’s Liability (1933) 81 U.Pa.L.Rev. 586), but it unaccountably fails to recognize that liability premised on proof of malice is not liability for negligence.
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) 210 Cal. 288, 291 [ 291 P. 577 ]; Rest.2d Torts, § 832.) This court has previously remarked, in the context of a nuisance action, that emotional distress occasioned by fear of disease resulting from drinking contaminated water is compensable “at least where . . . the tortious acts are wilful.” (Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 338 [ 5 Cal.Rptr. 686 , 353 P.2d 294 ]; see also, Rest.2d Torts, §§ 822, 825.) But the tort of nuisance is not broad enough to encompass many other situations in which one person’s wrongful handling of toxic materials has threatened the health of another.
Although this court has said that negligence and willful misconduct are “mutually exclusive” (Lynch v. Birdwell (1955) 44 Cal.2d 839, 848 [ 285 P.2d 919 ]), nevertheless it is not a defense to a charge of negligence “that the conduct was willful or the harm intended.” (American Employer’s Ins. Co. v. Smith (1980) 105 Cal.App.3d 94, 101 [ 163 Cal.Rptr. 649 ].)
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, 68 Cal.2d 579, 584 ). To construe this language as requiring proof that the occurrence of cancer is more likely than not would result in a scope of liability no greater than that for simple negligence. Accordingly, the probable harm requirement is properly understood as referring to the risk that the defendant’s conduct will cause persons such as the plaintiffs to ingest toxic chemicals and as a result experience reasonable, genuine, and serious fear of cancer.