California Civil Jury Instructions (CACI) (2017)

1623. Negligent Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct

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1623.Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential
Factual Elements
[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]:
2. [[Name of defendant] intended to cause injury to [name of
plaintiff];] [or]
2. [[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]
2. [[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]
2. [[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.
New September 2003; Revised June 2014, December 2014
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. There is no separate tort or cause of action for “negligent
infliction of emotional distress.” The doctrine is one that allows certain persons to
recover damages for emotional distress only on a negligence cause of action even
though they were not otherwise currently injured or harmed. (See Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d
Recovery for emotional distress without other current harm or injury is allowed for
negligent exposure to a disease-causing substance. If the plaintiff can prove
oppression, fraud, or malice, it is not necessary to establish that it is more likely
than not that the plaintiff will contract the disease. (See Potter v. Firestone Tire and
Rubber Co. (1993) 6 Cal.4th 965, 998 [25 Cal.Rptr.2d 550, 863 P.2d 795.) Use
CACI No. 1622, Negligence—Recovery of Damages for Emotional Distress—No
Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, if
plaintiff alleges exposure without oppression, fraud, or malice.
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
“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. (See Potter, supra, 6 Cal.4th at p. 1000.)
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.
The explanation in the next-to-last paragraph of what constitutes “serious”
emotional distress comes from the California Supreme Court. (See Molien,supra,
27 Cal.3d at p. 928.) In Wong v. Jing, an appellate court subsequently held that
serious emotional distress from negligence without other injury is the same as
“severe” emotional distress for the tort of intentional infliction of emotional
distress. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• Punitive Damages: Malice, Oppression, and Fraud Defined. Civil Code section
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in
the absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p.
• “[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.)
• “ ‘[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, supra, 27 Cal.3d at pp.
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for
intentional infliction of emotional distress]. Indeed, given the meaning of both
phrases, we can perceive no material distinction between them and can conceive
of no reason why either would, or should, describe a greater or lesser degree of
emotional distress than the other for purposes of establishing a tort claim
seeking damages for such an injury.” (Wong,supra, 189 Cal.App.4th at p.
• “All of the policy concerns expressed in Potter apply with equal force in the
fear of AIDS context.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074
[33 Cal.Rptr.2d 172].)
• “[Plaintiff parent] claims the likelihood of actual injury to [child] is immaterial
and that, in short, the rule announced in Potter regarding fear of cancer should
not be applied to a case involving fear of AIDS. We disagree.” (Herbert v.
Regents of University of California (1994) 26 Cal.App.4th 782, 786 [31
Cal.Rptr.2d 709].)
• “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. Co. (1992) 4
Cal.App.4th 306, 331 [5 Cal.Rptr.2d 594].)
• “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].)
• “Civil Code section 3294 requires a plaintiff to prove oppression, fraud, or
malice by ‘clear and convincing evidence’ for purposes of punitive damages
recovery. We decline to impose this stringent burden of proof for recovery of
fear of cancer damages in negligence cases for two reasons. First, we have
already adopted strict limitations on the availability of damages for negligently
inflicted fear of cancer; an additional hurdle at this point is unnecessary for
public policy purposes. Second, to recover compensatory damages in an action
for intentional infliction of emotional distress, a plaintiff need only prove the
fact that a defendant intentionally inflicted such distress by a preponderance of
the evidence. It is therefore both logical and consistent to utilize the same
burden of proof for recovery of compensatory damages when a defendant has
acted with ‘oppression, fraud or malice’ to negligently inflict emotional
distress.” (Potter,supra, 6 Cal.4th at p. 1000, fn. 20.)
• “[W]hen a defendant demonstrates that a plaintiff’s smoking is negligent and
that a portion of the plaintiff’s fear of developing cancer is attributable to the
smoking, comparative fault principles may be applied in determining the extent
to which the plaintiff’s emotional distress damages for such fear should be
reduced to reflect the proportion of such damages for which the plaintiff should
properly bear the responsibility.” (Potter, supra, 6 Cal.4th at p. 1011.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1036
Haning, et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items
Of Compensatory Damages, ¶ 3:218.6 (The Rutter Group)
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[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.38 (Matthew Bender)
1624–1699. Reserved for Future Use