Potter v. Firestone Tire & Rubber Co.

Decision Date27 December 1993
Docket NumberNo. S018831,S018831
Citation863 P.2d 795,6 Cal.4th 965,25 Cal.Rptr.2d 550
CourtCalifornia Supreme Court
Parties, 863 P.2d 795, 62 USLW 2433 Frank POTTER et al., Plaintiffs and Respondents, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant

Kaye, Scholer, Fierman, Hays & Handler, Pierce O'Donnell, Gerard Fox and Jeffrey Miles, McCutchen, Doyle, Brown & Enersen, John W. Fowler, John R. Reese, Patricia L. Walker, Warner & Hogan, Charles G. Warner, Harvey M. Grossman, for defendant and appellant.

Wiley, Rein & Fielding, Thomas W. Brunner, Laura A. Foggan, Frederick S. Ansell, Stephen D. Goldman, Sullivan, Roche & Johnson, Cameron Kirk, Jr., James L. Kimble, Seyfarth, Shaw, Fairweather & Geraldson, Sue J. Scott, Randal L. Golden, David F. Zoll, Donald D. Evans, Robin S. Conrad, Jan S. Amundson, Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Pillsbury, Madison

& Sutro, Sidney K. Kanazawa, Kevin M. Fong, Latham & Watkins, Ernest J. Getto, Cynthia H. Cwik, Charles F. Weiss, Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steve Merksamer, John E. Mueller, Peter Fullerton, John Montgomery, Daniel J. Popeo, Richard A. Samp, Fred J. Hiestand, Catherine I. Hanson, Alice P. Mead and Christiana Geffen, as amici curiae on behalf of defendant and appellant.

Stemple & Boyajian, Gordon A. Stemple, Richard Amerian, Sharon Munson Swanson and Robert K. Crawford, for plaintiffs and respondents.

Douglas Devries, Leonard Sachs, Bruce Broillet, Robert Steinberg, Roland Wrinkle, Harvey R. Levine, Ian Herzog, Evan D. Marshall, Rouda, Feder & Tietjen, Ronald H. Rouda, Macon Cowles, Priscilla Budeiri, Arthur Bryant and Anne Bloom, as amici curiae on behalf of plaintiffs and respondents.

Nossaman, Gunther, Knox & Elliott, Kurt W. Melchior, Brobeck, Phleger & Harrison, Tom M. Freeman, Thomas M. Peterson, William R. Irwin, Hill, Wynne, Troop & Meisinger, David W. Steuber, Kirk Pasich, Covington & Burling, Robert N. Sayler and William P. Skinner, as amici curiae.

BAXTER, Justice.

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 in 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;

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, 54 Cal.3d 868, 2 Cal.Rptr.2d 79, 820 P.2d 181, precludes any liability for intentional infliction 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.

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 emotional distress damages based on such fear.

I. 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 and department heads. The memorandum, reflecting official plant policy, explained liquid waste disposal procedures and described the particular waste materials involved and the proper method of handling them.

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...

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