Potter v. Firestone Tire and Rubber Co., Nos. H004841

CourtCalifornia Court of Appeals
Writing for the CourtELIA; CAPACCIOLI, Acting P.J., and PREMO
Citation15 Cal.App.4th 490,274 Cal.Rptr. 885
PartiesPreviously published at 225 Cal.App.3d 213, 232 Cal.App.3d 1114, 15 Cal.App.4th 490, 20 Cal.App.4th 629, 3 Cal.App.4th 994, 9 Cal.App.4th 881 225 Cal.App.3d 213, 232 Cal.App.3d 1114, 15 Cal.App.4th 490, 20 Cal.App.4th 629, 3 Cal.App.4th 994, 9 Cal.App.4th 881 Frank POTTER, et al., Plaintiffs and Respondents, v. The FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant.
Decision Date15 November 1990
Docket NumberH005465,Nos. H004841

Page 885

274 Cal.Rptr. 885
Previously published at 225 Cal.App.3d 213, 232 Cal.App.3d 1114, 15 Cal.App.4th 490, 20 Cal.App.4th 629, 3 Cal.App.4th 994, 9 Cal.App.4th 881
225 Cal.App.3d 213, 232 Cal.App.3d 1114, 15 Cal.App.4th 490,
20 Cal.App.4th 629, 3 Cal.App.4th 994,
9 Cal.App.4th 881
Frank POTTER, et al., Plaintiffs and Respondents,
v.
The FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant.
Nos. H004841, H005465.
Court of Appeal, Sixth District, California.
Nov. 15, 1990.
Review Granted Feb. 28, 1991.

Page 887

[232 Cal.App.3d 1119] [15 Cal.App.4th 634] John W. Fowler, John R. Reese, Patricia L. Walker, McCutchen, Doyle, Brown & Enersen, San Jose, Charles G. Warner, Warner & Hogan, Monterey, Harvey M. Grossman, Law Offices of Harvey M. Grossman, Los Angeles, for defendant/appellant.

Cameron Kirk, Jr., San Francisco, Thomas W. Brunner, Laura A. Foggan, Frederick S. Ansell and James L. Kimble, Washington, D.C., as amici curiae on behalf of defendant/appellant.

Richard Amerian, Law Offices of Richard Amerian, Sherman Oaks, Sharon Munson Swanson, Law Offices of Sharon Munson Swanson, Simi Valley, Gordon A. Stemple, Stemple & Boyajian, Los Angeles, Robert K. Crawford, Robert K. Crawford & Assoc., San Francisco, for plaintiffs/respondents.

Ian Herzog, Santa Monica, Evan Marshall, Corona, and Fred J. Hiestand, San Francisco, as amici curiae on behalf of plaintiffs/respondents.

ELIA, Associate Justice.

Respondents Frank Potter, Shirley Potter, Joseph Plescia and Linda Plescia filed suit against appellant Firestone Tire & Rubber Company after toxic chemicals deposited at the Crazy Horse waste disposal site contaminated their water supply. A court trial resulted in a judgment for respondents. They were awarded $1.32 million in compensatory damages and $2.6 million in punitive damages.

We affirm the award of compensatory damages for fear of cancer, psychological damage, and disruption of lives. We also affirm the award of punitive damages. However, we reverse the award of compensatory damages for the costs of medical monitoring and reverse the trial court's award of costs and prejudgment interest. (Code Civ.Proc., § 998; Civ.Code, § 3291.)

FACTS AND PROCEDURAL BACKGROUND

The Crazy Horse landfill is owned by the city of Salinas. It covers approximately 125 acres suitable for the disposal of household and [232 Cal.App.3d 1120] commercial solid waste and is classified as a class II sanitary landfill. Toxic substances and liquids are not permitted at a Class II dump because of the [15 Cal.App.4th 635] possibility that the substances will leach into the groundwater and cause contamination.

From 1963 until 1980, Firestone operated a tire manufacturing plant near Salinas. In 1967, Firestone entered into a contract with Salinas Disposal Service (SDS), a refuse collection company which operated the Crazy Horse landfill. Firestone agreed to deposit its waste in dumpsters located at the plant site. SDS, which provided the dumpsters, agreed to haul the waste to Crazy Horse and deposit it there.

SDS informed Firestone that solvents, cleaning fluids, oils and liquids were not permitted at Crazy Horse. Firestone provided assurances that this type of waste would not be sent to the landfill.

Nonetheless, Firestone sent large quantities of liquid waste to Crazy Horse. The waste included banbury drippings, a byproduct of the tire manufacturing process, which contained a combination of semi-liquid toxic chemicals. Firestone also sent liquid waste oils, liquid tread end cements, and solvents to the disposal site.

In May 1977, the Firestone plant engineer, who was in charge of environmental matters, sent a memorandum to the plant managers and department heads. The memorandum explained how to dispose of liquid wastes. The particular waste materials involved were identified and the method of handling them was described. The memorandum reflected the official policy of the plant on the subject.

In order to comply with this policy, efforts were made to take the waste materials to a Class I dump site. However, Firestone

Page 888

accumulated more waste than had been anticipated and disposing of the waste proved costly. Noncompliance with the policy became widespread. The plant engineer subsequently sent another memo to plant management. In the memo, he complained about the lack of compliance and pointed out that the policy was required by California law.

From 1977 until 1979, the Firestone plant manager was an individual who had been transferred to Salinas from Firestone's company headquarters in Akron, Ohio to "turn the plant around" and make it more profitable. This manager became angered over the costs of the waste disposal program and decided to discontinue it. As a consequence, the Firestone waste [232 Cal.App.3d 1121] materials, including the hazardous materials, were once again deposited at Crazy Horse.

Respondents Frank and Shirley Potter lived on Crazy Horse Canyon Road in the foothills of Monterey county. Respondents Joe and Linda Plescia [15 Cal.App.4th 636] were their neighbors. The Potter and Plescia properties were adjacent to the Crazy Horse landfill.

In 1984, respondents 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, respondents filed separate suits against Firestone for damages and declaratory relief. Their complaints included causes of action for negligent infliction of emotional distress, intentional infliction of emotional distress, and strict liability/ultrahazardous activity.

The two cases were tried together by the court. Judgment was entered in favor of respondents. In its statement of decision, the trial court concluded that Firestone's waste disposal practices from 1967 until 1974 were negligent. In particular, it determined that Firestone's dumping of liquid and semi-liquid wastes at the Crazy Horse landfill, despite being told that such dumping was prohibited, fell below the appropriate standard of care. Firestone had argued that it was not negligent because the dangers posed by toxics were not widely known until the mid-1970's. The trial court rejected this argument, and concluded that (1) Firestone had been informed by SDS that no solvents, cleaning fluids, oils or liquids were permitted at Crazy Horse; (2) Firestone should have inquired about the reason for certain landfill restrictions; and (3) if Firestone had made a minimal inquiry, it would have "learned from the Department of Water Resources of the dangers from landfill leachates to groundwater, the potential for contaminating domestic wells and what materials were prohibited."

The trial court also concluded that Firestone was liable for intentional infliction of emotional distress. It reasoned that Firestone's conduct after May 1977 was extreme and outrageous. The court stated that by 1977 Firestone had increased knowledge about the dangers of toxic waste. This knowledge was reflected in the 1977 memorandum detailing how liquid wastes should be disposed. Given the evidence regarding this memorandum and the fact that the memo represented Firestone's official waste disposal [232 Cal.App.3d 1122] policy, the trial court concluded that Firestone's decision to simply ignore that policy and dump its waste at Crazy Horse in order to reduce costs constituted extreme and outrageous conduct.

Finally, the trial court determined that Firestone was strictly liable. It concluded that the dumping of large amounts of toxic wastes in a Class II landfill constituted an ultrahazardous activity.

[15 Cal.App.4th 637] The trial court found that the toxic chemicals in the drinking water were the same chemicals or "daughter" chemicals as those used at the Firestone plant. It stressed that Firestone was the heaviest single contributor of waste at Crazy Horse and the only contributor with the identical "suite" of chemicals found in the water. It also noted that the expert testimony established that the chemicals which migrated off the Firestone plant site were so closely similar

Page 889

to those in the water that the comparison constituted a virtual "fingerprint" identifying Firestone as the source of the contaminants.

The trial court noted that whether respondents were likely to be harmed because of their exposure to these chemicals was the subject of conflicting medical opinions at trial. However, it found that there was convincing evidence that respondents' risk of developing cancer had increased. It reasoned that "this enhanced susceptibility is a presently existing physical condition."

The court also stated that although respondents testified to a wide array of physical symptoms which respondents 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 were the result of the well water and are the precursers [sic] of life threatening disease. Their fears are not merely subjective but are corroborated by substantial medical and scientific opinion." As a consequence, the trial court awarded each respondent $200,000 for his or her "fear of cancer."

The trial court also concluded, "Since [respondents] 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." Damages totalling $142,975 were awarded for the costs of future medical monitoring.

Respondents also received damages for psychiatric illness and the cost of treating such...

To continue reading

Request your trial
4 practice notes
  • Cottle v. Superior Court, No. B060125
    • United States
    • California Court of Appeals
    • February 26, 1992
    ...will be allowed in at trial, the court will continue to apply the Potter v. Firestone [Tire & Rubber Co. (1990) 232 Cal.App.3d 1114, 274 Cal.Rptr. 885] standard." We note that one federal circuit court observed that: "[I]n an effort to accommodate a society with an increasing awareness of t......
  • Bocook v. Ashland Oil, Inc., Civ. A. No. 3:91-0839
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 11, 1993
    ...Therefore, this Rule 12(b)(6) motion has not been converted to one for summary judgment. 5 Potter v. Firestone Tire & Rubber Co., 274 Cal. Rptr. 885 (Cal.Ct.App.1990), review granted and opinion superseded, 278 Cal.Rptr. 836, 806 P.2d 308 (Cal.1991), cited by the defendant, is not to the co......
  • Hansen v. Mountain Fuel Supply Co., No. 900420
    • United States
    • Supreme Court of Utah
    • August 4, 1993
    ...likelihood that the disease will actually occur in determining the reasonableness of the fear. Potter v. Firestone Tire & Rubber Co., 15 Cal.App. 4th 490, 274 Cal.Rptr. 885, 893 (Ct.App.1990). The fact finder should further consider the duration and nature of the exposure to the toxic subst......
  • Potter v. Firestone Tire and Rubber Co., No. S018831
    • United States
    • United States State Supreme Court (California)
    • February 28, 1991
    ...FIRESTONE TIRE AND RUBBER COMPANY, Appellant. No. S018831. Supreme Court of California, In Bank. Feb. 28, 1991. Prior report: Cal.App., 274 Cal.Rptr. 885. Appellant's petition for review Submission of additional briefing, otherwise required by Rule 29.3, California Rules of Court, is deferr......
4 cases
  • Cottle v. Superior Court, No. B060125
    • United States
    • California Court of Appeals
    • February 26, 1992
    ...will be allowed in at trial, the court will continue to apply the Potter v. Firestone [Tire & Rubber Co. (1990) 232 Cal.App.3d 1114, 274 Cal.Rptr. 885] standard." We note that one federal circuit court observed that: "[I]n an effort to accommodate a society with an increasing awareness of t......
  • Bocook v. Ashland Oil, Inc., Civ. A. No. 3:91-0839
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 11, 1993
    ...Therefore, this Rule 12(b)(6) motion has not been converted to one for summary judgment. 5 Potter v. Firestone Tire & Rubber Co., 274 Cal. Rptr. 885 (Cal.Ct.App.1990), review granted and opinion superseded, 278 Cal.Rptr. 836, 806 P.2d 308 (Cal.1991), cited by the defendant, is not to the co......
  • Hansen v. Mountain Fuel Supply Co., No. 900420
    • United States
    • Supreme Court of Utah
    • August 4, 1993
    ...likelihood that the disease will actually occur in determining the reasonableness of the fear. Potter v. Firestone Tire & Rubber Co., 15 Cal.App. 4th 490, 274 Cal.Rptr. 885, 893 (Ct.App.1990). The fact finder should further consider the duration and nature of the exposure to the toxic subst......
  • Potter v. Firestone Tire and Rubber Co., No. S018831
    • United States
    • United States State Supreme Court (California)
    • February 28, 1991
    ...FIRESTONE TIRE AND RUBBER COMPANY, Appellant. No. S018831. Supreme Court of California, In Bank. Feb. 28, 1991. Prior report: Cal.App., 274 Cal.Rptr. 885. Appellant's petition for review Submission of additional briefing, otherwise required by Rule 29.3, California Rules of Court, is deferr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT