California Civil Jury Instructions (CACI)
1623. Negligent Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct
[Name of plaintiff] claims that [name of defendant] acted with [malice/oppression/fraudulent intent] in exposing [name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or AIDS] and that this conduct caused [name of plaintiff] to suffer serious emotional distress. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was exposed to [insert applicable carcinogen, toxic substance, HIV, or AIDS] as a result of [name of defendant]’s negligent conduct;
2. That [name of defendant] acted with [malice/oppression/fraudulent intent] because [insert one or more of the following, as applicable]:
[[Name of defendant] intended to cause injury to [name of plaintiff];] [or]
[[Name of defendant]’s conduct was despicable and was carried out with a willful or conscious disregard of [name of plaintiff]’s rights or safety;] [or]
[[Name of defendant]’s conduct was despicable and subjected [name of plaintiff] to cruel and unjust hardship in conscious disregard of [name of plaintiff]’s rights;] [or]
[[Name of defendant] intentionally misrepresented or concealed a material fact known to [name of defendant], intending to cause [name of plaintiff] harm;]
3. That [name of plaintiff] suffered serious emotional distress from a fear that [he/she] will develop [insert applicable cancer, HIV, or AIDS] as a result of the exposure;
4. That reliable medical or scientific opinion confirms that [name of plaintiff]’s risk of developing [insert applicable cancer, HIV, or AIDS] was significantly increased by the exposure and has resulted in an actual risk that is significant; and
5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.
“Despicable conduct” is conduct that is so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.
Directions for Use
Use CACI No. 1622, Negligent Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS, if plaintiff alleges the same tort without punitive conduct.
“Oppression, fraud, or malice” is used here as defined by Civil Code section 3294, except that the higher “clear and convincing” burden of proof is not required in this context.
In some cases the judge should make clear that the defendant does not need to have known of the individual plaintiff where there is a broad exposure and plaintiff is a member of the class that was exposed.
Sources and Authority
- “ ‘[D]amages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact …’ ” (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 986 [25 Cal.Rptr.2d 550, 863 P.2d 795], quoting Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074 [9 Cal.Rptr.2d 615, 831 P.2d 1197].)
- “[A] toxic exposure plaintiff need not meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant’s conduct in causing the exposure amounts to ‘oppression, fraud, or malice’ as defined in Civil Code section 3294.” (Potter, supra, 6 Cal.4th at p. 998.)
- The California Supreme Court has acknowledged the Hawaii Supreme Court’s definition of “serious emotional distress”: “ ‘[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927—928 [167 Cal.Rptr. 831, 616 P.2d 813], quoting Rodrigues v. State (1970) 52 Haw. 156, 173 [472 P.2d 509].)
- Courts have applied the reasoning of Potter, supra, to cases alleging that defendant’s conduct caused plaintiff emotional distress based on fear of contracting AIDS. (See Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1073—1075 [33 Cal.Rptr.2d 172]; Herbert v. Regents of University of California (1994) 26 Cal.App.4th 782, 785—788 [31 Cal.Rptr.2d 709].)
- Civil Code section 3294(c) provides:
As used in this section, the following definitions apply:
(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
- “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Mich. Millers Mut. Ins.
- “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ ” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal.Rptr.2d 898, 882 P.2d 894].)
- [Although] “Civil Code section 3294 requires a plaintiff to prove oppression, fraud, or malice by ‘clear and convincing evidence’ for purposes of punitive damages,” this higher burden of proof has not been applied to fear-of-cancer cases. (Potter, supra, 6 Cal.4th at p. 1000, fn. 20.)
- Comparative fault principles may be applied to reduce amount of recovery for emotional distress based on fear of developing cancer when plaintiff’s smoking is negligent and a portion of the fear of cancer is attributable to the smoking. (Potter, supra, 6 Cal.4th at p. 965.)
Co. (1992) 4 Cal.App.4th 306, 331 [5 Cal.Rptr.2d 594].)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.02 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.11[c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress, § 153.38 (Matthew Bender)