California Civil Jury Instructions (CACI)

1601. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS

[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/her] to suffer severe emotional distress by exposing [name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or AIDS]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant]’s conduct was outrageous;

2. That [name of defendant]’s conduct exposed [name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or AIDS];

3. [That [name of defendant] intended to cause [name of plaintiff] emotional distress;] [or]

[That [name of defendant] acted with reckless disregard of the probability that [[name of plaintiff]/the group of individuals including [name of plaintiff]] would suffer emotional distress, knowing that [he/she/they] [was/were] present when the conduct occurred;]

4. That [name of plaintiff] suffered severe emotional distress from a reasonable fear of developing [insert applicable cancer, HIV, or AIDS]; and

5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s severe emotional distress.

A fear of developing [insert applicable cancer, HIV, or AIDS] is “reasonable” if the fear stems from the knowledge, confirmed by reliable medical or scientific opinion, that a person’s risk of [insert applicable cancer, HIV, or AIDS] has significantly increased and that the resulting risk is significant.

New September 2003

Directions for Use

CACI Nos. 1602—1604, regarding the elements of intentional infliction of emotional distress, should be given with the above instruction. Depending on the facts of the case, a plaintiff could choose one or both of the bracketed choices in element 3.

There may be other harmful agents and medical conditions that could support this cause of action.

See CACI Nos. 1622 and 1623 for claims of negligent infliction of emotional distress involving fear of cancer, HIV, or AIDS.

Sources and Authority

  • “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.’ ” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [2 Cal.Rptr.2d 79, 820 P.2d 181], internal citation omitted; Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 1001 [25 Cal.Rptr.2d 550, 863 P.2d 795].)
  • “ ‘The law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.’ The only exception to this rule is that recognized when the defendant is aware of, but acts with reckless disregard of, the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp. 905—906, internal citations omitted.)
  • “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable [person] in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397 [89 Cal.Rptr. 78]; Potter, supra, 6 Cal.4th at p. 1004.)
  • “[I]t must . . . be established that plaintiff’s fear of cancer is reasonable, that is, that the fear is based upon medically or scientifically corroborated knowledge that the defendant’s conduct has significantly increased the plaintiff’s risk of cancer and that the plaintiff’s actual risk of the threatened cancer is significant.” (Potter, supra, 6 Cal.4th at p. 1004.)
  • The court in Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 787—788 [31 Cal.Rptr.2d 709] held that the rules relating to recovery of damages for fear of cancer apply to fear of AIDS. See also Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1075 [33 Cal.Rptr.2d 172].

Secondary Sources

32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.11[3][c] (Matthew Bender)

15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress, § 153.38 (Matthew Bender)