California Civil Jury Instructions (CACI) (2017)

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

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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]
3. [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.
896
0004
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)
EMOTIONAL DISTRESS CACI No. 1601
897
0005