Frank POTTER, et al., Plaintiffs and Respondents, v. The FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant.
Respondents Frank Potter, Shirley Potter, Joseph Plescia and Linda Plescia filed suit against appellant Firestone Tire & Rubber Company after toxic chemicals deposited at the Crazy Horse waste disposal site contaminated their water supply. A court trial resulted in a judgment for respondents. They were awarded $1.32 million in compensatory damages and $2.6 million in punitive damages.
We affirm the award of compensatory damages for fear of cancer, psychological damage, and disruption of lives. We also affirm the award of punitive damages. However, we reverse the award of compensatory damages for the costs of medical monitoring and reverse the trial court's award of costs and prejudgment interest. (Code Civ.Proc., § 998; Civ.Code, § 3291.)
FACTS AND PROCEDURAL BACKGROUND
The Crazy Horse landfill is owned by the city of Salinas. It covers approximately 125 acres suitable for the disposal of household and commercial solid waste and is classified as a class II sanitary landfill. Toxic substances and liquids are not permitted at a Class II dump because of the possibility that the substances will leach into the groundwater and cause contamination.
From 1963 until 1980, Firestone operated a tire manufacturing plant near Salinas. In 1967, Firestone entered into a contract with Salinas Disposal Service (SDS), a refuse collection company which operated the Crazy Horse landfill. Firestone agreed to deposit its waste in dumpsters located at the plant site. SDS, which provided the dumpsters, agreed to haul the waste to Crazy Horse and deposit it there.
SDS informed Firestone that solvents, cleaning fluids, oils and liquids were not permitted at Crazy Horse. Firestone provided assurances that this type of waste would not be sent to the landfill.
Nonetheless, Firestone sent large quantities of liquid waste to Crazy Horse. The waste included banbury drippings, a byproduct of the tire manufacturing process, which contained a combination of semi-liquid toxic chemicals. Firestone also sent liquid waste oils, liquid tread end cements, and solvents to the disposal site.
In May 1977, the Firestone plant engineer, who was in charge of environmental matters, sent a memorandum to the plant managers and department heads. The memorandum explained how to dispose of liquid wastes. The particular waste materials involved were identified and the method of handling them was described. The memorandum reflected the official policy of the plant on the subject.
In order to comply with this policy, efforts were made 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. Noncompliance with the policy became widespread. The plant engineer subsequently sent another memo to plant management. In the memo, he complained about the lack of compliance and pointed out that the policy was required by California law.
From 1977 until 1979, the Firestone plant manager was an individual who had been transferred to Salinas from Firestone's company headquarters in Akron, Ohio to “turn the plant around” and make it more profitable. This manager became angered over the costs of the waste disposal program and decided to discontinue it. As a consequence, the Firestone waste materials, including the hazardous materials, were once again deposited at Crazy Horse.
Respondents Frank and Shirley Potter lived on Crazy Horse Canyon Road in the foothills of Monterey county. Respondents Joe and Linda Plescia were their neighbors. The Potter and Plescia properties were adjacent to the Crazy Horse landfill.
In 1984, respondents 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, respondents filed separate suits against Firestone for damages and declaratory relief. Their complaints included causes of action for negligent infliction of emotional distress, intentional infliction of emotional distress, and strict liability/ultrahazardous activity.
The two cases were tried together by the court. Judgment was entered in favor of respondents. In its statement of decision, the trial court concluded that Firestone's waste disposal practices from 1967 until 1974 were negligent. In particular, it determined that Firestone's dumping of liquid and semi-liquid wastes at the Crazy Horse landfill, despite being told that such dumping was prohibited, fell below the appropriate standard of care. Firestone had argued that it was not negligent because the dangers posed by toxics were not widely known until the mid–1970's. The trial court rejected this argument, and concluded that (1) Firestone had been informed by SDS that no solvents, cleaning fluids, oils or liquids were permitted at Crazy Horse; (2) Firestone should have inquired about the reason for certain landfill restrictions; and (3) if Firestone had made a minimal inquiry, it would have “learned from the Department of Water Resources of the dangers from landfill leachates to groundwater, the potential for contaminating domestic wells and what materials were prohibited.”
The trial court also concluded that Firestone was liable for intentional infliction of emotional distress. It reasoned that Firestone's conduct after May 1977 was extreme and outrageous. The court stated that by 1977 Firestone had increased knowledge about the dangers of toxic waste. This knowledge was reflected in the 1977 memorandum detailing how liquid wastes should be disposed. Given the evidence regarding this memorandum and the fact that the memo represented Firestone's official waste disposal policy, the trial court concluded that Firestone's decision to simply ignore that policy and dump its waste at Crazy Horse in order to reduce costs constituted extreme and outrageous conduct.
Finally, the trial court determined that Firestone was strictly liable. It concluded that the dumping of large amounts of toxic wastes in a Class II landfill constituted an ultrahazardous activity.
The trial court found that the toxic chemicals in the drinking water were the same chemicals or “daughter” chemicals as those used at the Firestone plant. It stressed that Firestone was the heaviest single contributor of waste at Crazy Horse and the only contributor with the identical “suite” of chemicals found in the water. It also noted that the expert testimony established that the chemicals which migrated off the Firestone plant site were so closely similar to those in the water that the comparison constituted a virtual “fingerprint” identifying Firestone as the source of the contaminants.
The trial court noted that whether respondents were likely to be harmed because of their exposure to these chemicals was the subject of conflicting medical opinions at trial. However, it found that there was convincing evidence that respondents' risk of developing cancer had increased. It reasoned that “this enhanced susceptibility is a presently existing physical condition.”
The court also stated that although respondents testified to a wide array of physical symptoms which respondents attributed to the toxic chemicals, it was not “possible to demonstrate with sufficient certainty a causal connection between these symptoms and the well water contamination. Nevertheless, plaintiffs will always fear, and reasonably so, that physical impairments they experience were the result of the well water and are the precursers [sic] of life threatening disease. Their fears are not merely subjective but are corroborated by substantial medical and scientific opinion.” As a consequence, the trial court awarded each respondent $200,000 for his or her “fear of cancer.”
The trial court also concluded, “Since [respondents] now live with an increased vulnerability to serious disease it is axiomatic that they should receive periodic medical monitoring in order to determine at the earliest possible time the onset of disease.” Damages totalling $142,975 were awarded for the costs of future medical monitoring.
Respondents also received damages for psychiatric illness and the cost of treating such illness, as well as damages for the disruption of their lives. Punitive damages totalling $2,600,000 were also awarded.
I. FEAR OF CANCER
Firestone attacks the award of damages for fear of cancer. It argues that respondents (1) did not suffer a physical injury and therefore should not recover damages for their fear of cancer; (2) did not prove that it was probable that they would develop cancer; and (3) should be prohibited, as a matter of policy, from recovering damages for their fear of cancer based upon the circumstances of this case. Before addressing these arguments, we first set out the applicable law.
Negligent infliction of emotional distress (NIED) is not a separate tort; it is the tort of negligence. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278, quoting 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 838, p. 195.) Thus, a plaintiff seeking to recover for NIED must prove the elements of a negligence cause of action. These are (1) duty; (2) breach; (3) causation; and (4) actual loss or damage. (Ibid.)
The Civil Code characterizes actual loss or damage as “detriment.” Detriment is defined in Civil Code section 3282 as “a loss or harm suffered in person or property.” According to Civil Code section 3281, “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”
The measure of damages for tort actions “is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ.Code, § 3333.) Damages for emotional distress are frequently awarded as part of a plaintiff's compensation for detriment suffered. Such damages include recovery for “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.” (Deevy v. Tassi (1942) 21 Cal.2d 109, 120, 130 P.2d 389; Thing v. La Chusa (1989) 48 Cal.3d 644, 648–649, 257 Cal.Rptr. 865, 771 P.2d 814.)
In negligence actions, recovery for emotional distress was traditionally limited to circumstances where (1) the emotional distress damages were “parasitic” to a physical injury or (2) the plaintiff was in the “zone of danger” and did not suffer physical injury from impact, but did suffer emotional trauma which resulted in physical injury. (Thing v. La Chusa, supra, 48 Cal.3d at p. 651, 257 Cal.Rptr. 865, 771 P.2d 814.) The requirement that there be physical injury, either from impact, or from the emotional distress itself, was thought to guard against false claims and feigned injuries. (Prosser & Keeton, Torts (5th ed. 1984) Chap. 9, § 54, p. 363; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 925–926, 167 Cal.Rptr. 831, 616 P.2d 813.)
In Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the California Supreme Court determined that damages for negligent infliction of emotional distress (NIED) could be recovered even where there was no physical injury. The primary justification for the physical injury requirement—to guard against false claims—was criticized by the court as unnecessary. (Id. at p. 926, 167 Cal.Rptr. 831, 616 P.2d 813.) The court reasoned that the requirement encouraged extravagant pleading and distorted testimony, was overinclusive because it allowed recovery even where the physical injury was trivial, and was underinclusive because “it mechanically denies court access to claims that may well be valid and could be proved․” (Id. at p. 929, 167 Cal.Rptr. 831, 616 P.2d 813.)
Molien discussed Ferrara v. Galluchio (1958) 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249. It noted that the court in Ferrara had focused upon whether the emotional distress was genuine, as opposed to whether there was a physical injury. In Ferrara, the plaintiff suffered an x-ray burn and then was informed by a dermatologist that the area of the burn might become cancerous. Plaintiff sought to recover for the severe cancerphobia she subsequently developed. The New York court permitted recovery, finding it to be “ ‘entirely plausible, under such circumstances, that plaintiff would undergo exceptional mental suffering over the possibility of developing cancer.’ ” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 926, 167 Cal.Rptr. 831, 616 P.2d 813; quoting Ferrara v. Galluchio, supra, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 1000, 152 N.E.2d 249.)
Molien determined that the “essential question was one of proof” and concluded: “ ‘In cases other than where proof of mental distress is of a medically significant nature, [citations] the general standard of proof required to support a claim of mental distress is some guarantee of genuineness in the circumstances of the case. [Citation.]’ ” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 929–930, 167 Cal.Rptr. 831, 616 P.2d 813, quoting Rodrigues v. State (1970) 52 Hawaii 156, 472 P.2d 509, 520.) The court reasoned that the circumstances of the case, expert medical testimony, and the jurors' own experience could provide sufficient guarantees of genuineness to corroborate a claim of emotional distress. (27 Cal.3d at p. 930, 167 Cal.Rptr. 831, 616 P.2d 813.)
Molien established that a plaintiff could recover for NIED even in the absence of physical injury. Of course, in most cases, whether a physical injury has occurred is not an issue. As a result, the practical effect of Molien was to allow greater ease of recovery in bystander cases or cases where there was no physical injury to the plaintiff but there was injury to a third person.
In Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, the California Supreme Court restricted recovery for NIED in bystander cases by imposing three prerequisites for recovery. Thing required that the plaintiff (1) be “closely related to the injury victim” (2) be “present at the scene of the injury-producing event at the time it occurs” and “aware it is causing injury to the victim” and (3) as a result suffer “serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Id. at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814.)
Thing did not alter Molien's abandonment of the physical injury requirement; Thing simply limited recovery in the usual NIED situation where the plaintiff suffers no physical injury from impact-bystander cases. In so doing, Thing recognized that although bystanders might be characterized as foreseeable plaintiffs, policy considerations required that a negligent actor be liable only to a certain category of bystanders.
In this case, we face a different scenario. Simply put, respondents drank water contaminated with carcinogens and now fear that they will develop cancer. This is obviously not a bystander case. However, it is also not a typical physical injury from impact case. Although respondents suffered an impact in the sense that toxics invaded their bodies, it is not clear whether respondents have suffered a physical injury. They do not have cancer now. They do not have a diagnosed pre-cancerous condition. Although they experience many physical symptoms which they attribute to the toxics, the trial court concluded that the evidence did not establish with sufficient certainty that those symptoms were caused by the contaminated water. The court did, however, conclude that respondents' increased susceptibility to cancer is “a presently existing physical condition.”
Firestone argues that this increased risk of developing cancer is not a physical injury; it contends there is no physical injury in these circumstances and claims that this is one reason damages for fear of cancer cannot be permitted. Respondents argue that under Molien it makes no difference whether a physical injury exists.
We agree with respondents. Molien held that physical injury is not a prerequisite to recovery in NIED cases. In addition, although respondents have not suffered a present physical injury, the essence of their fear is that a cancer-causing substance has entered their bodies and therefore made them more susceptible to future physical injury. In other words, the security of their person has been jeopardized. Thus, although we decline to characterize an increase in risk as a physical injury, it is apparent that these circumstances provide a certain guarantee that respondents' fear is genuine. Simply put, it is clear that respondents are not attempting to recover for mere bad manners or trivialities. (See e.g. Pintor v. Ong (1989) 211 Cal.App.3d 837, 846, 259 Cal.Rptr. 577; see also Thing v. La Chusa, supra, 48 Cal.3d at p. 663, 257 Cal.Rptr. 865, 771 P.2d 814.) Thus, we conclude that in circumstances such as these—where respondents have ingested carcinogens—it is not necessary for respondents to establish a present physical injury in order to recover for their fear of cancer.
Having concluded that respondents need not establish a physical injury to recover for fear of cancer, we next consider Firestone's argument that respondents must prove that they are likely to develop the disease. In other words, Firestone contends that damages for fear of cancer are permissible only if a plaintiff establishes a probability (presumably greater than 50%) of developing cancer. As we shall explain below, we do not believe that such a requirement should be a prerequisite to recovery.
If respondents were seeking “prospective damages” or damages for a future loss, then they would have to establish that the loss was reasonably certain to occur. (Civ.Code, § 3283; Oliveira v. Warren (1938) 24 Cal.App.2d 712, 713–714, 76 P.2d 113.) Probabilities are often the basis for such determinations. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1326, p. 784; Ostertag v. Bethlehem etc. Corp. (1944) 65 Cal.App.2d 795, 806–807, 151 P.2d 647.)
This case, however, did not include an award for future cancer. The fear of cancer damages were awarded for respondents' fear that they will develop the disease, not for the chance that they will contract cancer at some subsequent time. Respondents fear cancer now. Their fear is certain, definite and real. It is not contingent upon whether respondents in fact develop the disease.
Of course, to the extent that respondents recovered for fear they will experience in the future, then that fear must be reasonably certain to occur. However, it is the fear which must be reasonably certain to occur, not the disease or condition upon which the fear is based.1
In Jones v. United Railroads of S.F. (1921) 54 Cal.App. 744, 202 P. 919, the court distinguished between recovery for fear of a future condition and recovery for the future condition itself. In that case, the 73 year old plaintiff was injured while attempting to disembark from a cable car. The defendant argued that the plaintiff should not have been permitted to recover for her fear that she would be permanently disabled. According to the defendant, any such recovery would violate Civil Code section 3283, which required that future damages be certain.
The court disagreed and distinguished between recovery for the future disability and recovery for the plaintiff's mental suffering caused by her reasonable apprehension of being permanently disabled. It stated that these damages were “no more uncertain and indefinite than in any other case of mental suffering” and emphasized that plaintiff was recovering for apprehension of a future disability, which apprehension caused plaintiff mental suffering. (Id. at pp. 753–754, 202 P. 919.)
In sum, we conclude that a plaintiff need not establish that cancer is reasonably certain to occur in order to recover for fear of cancer. We will now consider what a plaintiff must establish before recovery can be allowed for fear of cancer resulting from ingesting a carcinogen.
First, it is fundamental that the plaintiff prove the elements of a negligence cause of action. Thus, the plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) loss or damage. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278, quoting 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 838, p. 195.) With respect to the element of duty, Marlene F. noted: “Damages for severe emotional distress, ․ are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id. at p. 590, 257 Cal.Rptr. 98, 770 P.2d 278.)
Second, the plaintiff must establish that the emotional distress is serious. As the court reasoned in Molien, serious emotional distress is such that “a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 928, 167 Cal.Rptr. 831, 616 P.2d 813, quoting Rodrigues v. State, supra, 52 Hawaii 156, 472 P.2d at p. 520.)
Third, as demonstrated above, in determining whether emotional distress is serious, an objective standard should be utilized. This is because, as noted in Rodrigues v. State (1970) 52 Hawaii 156, 472 P.2d 509, “[I]t is universally agreed that there are compelling reasons for limiting the recovery of the plaintiff to claims of serious mental distress. The reasons offered to limit recovery are that mental distress of a trivial and transient nature is part and parcel of everyday life in a community, that under certain circumstances social controls may deal more effectively with mental distress, that some kinds of mental distress may have a beneficial therapeutic effect, that the law should not penalize the ‘prime mover’ in society nor curry to neurotic patterns in the population. [Citations.] We believe these reasons are to be considered by the jury and the court with the particular facts of each case in applying the ‘reasonable [person]’ standard․” (Id., 472 P.2d at p. 520, emphasis in original.)
An objective standard guards against frivolous and trivial claims by ensuring that there is recovery only when the circumstances would cause serious emotional distress in a reasonable person. Furthermore, an objective standard was alluded to in both Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 928, 167 Cal.Rptr. 831, 616 P.2d 813; and Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814. In fact, in Thing v. La Chusa, the court cited Rodrigues to explain what constituted serious emotional distress. (Thing v. La Chusa, supra, 48 Cal.3d at p. 668, fn. 12, 257 Cal.Rptr. 865, 771 P.2d 814; see also Prosser & Keeton, Torts (5th ed. 1984) Chap. 9, § 54, pp. 363–364.)
Fourth, in determining whether the circumstances are such as to cause serious emotional distress in a reasonable person, the factfinder should consider evidence regarding the likelihood that the cancer will occur. Although a plaintiff is not required to establish that the cancer is likely to occur to recover for fear of cancer, evidence regarding the probability that the cancer will develop certainly should be considered by the trier of fact in assessing the reasonableness of the fear. Evidence that the disease is only a remote possibility, for example, could lead a trier of fact to conclude that a plaintiff's fears were unreasonable.
Finally, the factors discussed in Molien should be considered by the trier of fact in determining whether a fear of cancer claim is genuine. These include expert testimony, a juror's own experience, and the particular circumstances of the case. In this case, the trial court relied upon these factors when it stressed that the respondents' “fears are not merely subjective but are corroborated by substantial medical and scientific opinion” and when the trial court concluded that respondents “will always fear, and reasonably so, that physical impairments they experience are the result of the well water and are precursers [sic] of life threatening disease.”
Firestone raises a number of policy arguments against allowing recovery for fear of cancer. It cites Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, as well as Elden v. Sheldon (1988) 46 Cal.3d 267, 274, 250 Cal.Rptr. 254, 758 P.2d 582, and Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 446–447, 138 Cal.Rptr. 302, 563 P.2d 858 to argue that those cases all demonstrate that in certain circumstances liability must be limited in order to avoid an “intolerable burden on society.” (Elden v. Sheldon, supra, 46 Cal.3d at p. 274, 250 Cal.Rptr. 254, 758 P.2d 582.) It argues that exposure to carcinogens is an unfortunate but universal condition of life in our society and points out that the inherent risk of cancer for most individuals is already substantial. Firestone also suggests that the floodgates of litigation would be opened if recovery is permitted.
We believe that there can be recovery without catastrophe. Firestone's pronouncements of a flood of litigation simply reiterate, in similar form, many of the arguments already rejected in Molien. (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 928–929, 167 Cal.Rptr. 831, 616 P.2d 813.) To repeat: all plaintiffs need not be denied recovery because of the chance that there might be meritless claims.
Nor do we believe that Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 requires a different result. In Thing, the Supreme Court determined that foreseeability alone could not be used to justify recovery. The court stressed that “it is appropriate to restrict recovery to those persons who will suffer an emotional impact beyond the impact that can be anticipated whenever one learns that a relative is injured, or dies, or the emotion felt by a ‘disinterested’ witness. The class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress. When the right to recover is limited in this manner, the liability bears a reasonable relationship to the culpability of the negligent defendant.” (Id. at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814.)
Firestone argues that these statements in Thing, limiting recovery to a certain class of plaintiffs in bystander NIED cases, establish that recovery for fear of cancer should be prohibited in these circumstances. Firestone points out that Thing stressed that exposure to the occasional gruesome or horrible incident is a fact of life for which compensation may not be obtained, even if emotional distress was foreseeable. Firestone seems to suggest that having your well water contaminated with benzene is simply another such “unavoidable” incident which is merely an “unfortunate” fact of modern society.
We think it clear, however, that the two situations are not even remotely analogous. Thing suggests that a negligent actor cannot be liable to everyone who witnesses injury; Firestone seems to argue that the negligent actor should be liable to no one at all. Thing involved recovery in cases where there was injury to a third person; the present circumstances do not.
To be sure, there will likely be circumstances where a court or jury determines that a plaintiff's fear of cancer is unreasonable or does not appear genuine. After all, as one commentator noted, “It is difficult to go a week without news of toxic exposure. Virtually everyone in society is conscious of the fact that the air they breathe, water, food and drugs they ingest, land on which they live, or products to which they are exposed are potential health hazards. Although few are exposed to all, few also can escape exposure to any.” (Dworkin, Fear of Disease And Delayed Manifestation Injuries: A Solution Or A Pandora's Box? (1984) 53 Ford.Law Rev. 527, 576 [fns. omitted].) Given these facts, plaintiffs may have a difficult time persuading the trier of fact that their fear is serious or that they should be specially compensated for their fears. (Ibid.)
Those problems, however, do not exist here. To the contrary, the fact that respondents' water supply was contaminated by carcinogens is, by itself, surely a circumstance which is likely to cause emotional distress in most reasonable persons. More importantly, however, the trial court found this to be the case, and stated that respondents “will always fear, and reasonably so, that physical impairments they experience are the result of the well water and are the precursers [sic] of life threatening disease.” In addition, although the trial court did not conclude that respondents were likely to develop cancer as a result of the exposure, it did conclude that the increased risk was significant. This supports the trial court's determination that respondents' fear was reasonable.
Respondents necessarily live with the fear that they may develop cancer. The trial court concluded and the evidence establishes that this fear is genuine, serious, and reasonable. Accordingly, we think that respondents should be allowed to recover for their fear. However, we emphasize that our holding is limited to these particular circumstances, where the plaintiffs have ingested carcinogens as a result of the defendant's conduct and consequently fear that they will develop cancer. Having so limited our holding, we conclude that the trial court did not err in permitting respondents to recover for their fear of cancer.
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Firestone contends that it cannot be liable for intentional infliction of emotional distress. In particular, Firestone argues that its conduct was not extreme and outrageous and it did not intend to cause or act with reckless disregard of the probability of causing emotional distress. For reasons we shall state, we disagree.
The elements of a claim of intentional infliction of emotional distress are “(i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300, 253 Cal.Rptr. 97, 763 P.2d 948; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7, 233 Cal.Rptr. 308, 729 P.2d 743.)
To be characterized as outrageous, conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975; Davidson v. City of Westminister (1982) 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894.) Conduct meeting this requirement has covered a wide variety of situations. (Cervantez v. J.C. Penney Co., supra, 24 Cal.3d at pp. 593–594, 156 Cal.Rptr. 198, 595 P.2d 975 [arrest made with knowledge or with reckless disregard of the fact that no offense had been committed]; Richardson v. Pridmore (1950) 97 Cal.App.2d 124, 130, 217 P.2d 113 [the removal of tenant's belongings and the rental of the premises to another by a landlord]; DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1024, fn. 6, 242 Cal.Rptr. 368, [sexual assault of a minor]; Golden v. Dungan (1971) 20 Cal.App.3d 295, 310, 97 Cal.Rptr. 577 [causing a process server to visit plaintiffs' home at midnight and beat upon their door]; Kiseskey v. Carpenters' Trust For So. California (1983) 144 Cal.App.3d 222, 230, 192 Cal.Rptr. 492 [agents of labor union threatening employer and family if employer did not sign agreement with union].)
After measuring this case against the cases above, we conclude that Firestone's conduct after 1977 in depositing hazardous materials at a class II dump was sufficiently extreme and outrageous to support a cause of action for intentional infliction of emotional distress. The evidence demonstrates that Firestone knew these types of wastes posed health hazards and were not to be dumped at Crazy Horse. Nonetheless, in an effort to cut costs, Firestone deliberately ignored these facts and dumped large quantities of toxic materials at the very site at which the materials were prohibited. We think that this conduct can easily be characterized as extreme and outrageous. We see nothing drastic in concluding that Firestone's conduct exceeds that which will be tolerated by a civilized society.
Firestone's next argument is that it did not act with the intent to cause, or with reckless disregard of the probability of causing, emotional distress to respondents. In particular, Firestone argues that its actions were not intended to cause emotional distress to respondents because respondents were “total strangers, completely unknown to Firestone.”
Firestone's contention that it is not liable because it did not know respondents is without merit. Taylor v. Vallelunga (1959) 171 Cal.App.2d 107, 339 P.2d 910, which Firestone cites to support this novel proposition, is inapposite. In Taylor, the plaintiff witnessed the defendant assaulting another person but was not permitted to recover for her emotional distress because the defendant did not know plaintiff was present and could not have directed his conduct toward her.
There is obviously a difference between the facts in Taylor, where the defendant did not know anyone was present, and the facts here, where Firestone did not know the names of the particular persons whose well water was contaminated by Firestone's hazardous waste. In addition, in Taylor, the defendant's conduct was directed at another person; the plaintiff was a bystander. In this case, by contrast, Firestone's conduct was necessarily directed at those individuals residing near the Crazy Horse landfill.
We are unpersuaded by Firestone's belated attempt to disclaim responsibility for the clear-cut risk its conduct posed to others. Firestone knew that depositing hazardous materials at Crazy Horse was prohibited. The reason for the prohibition obviously included the possibility that these hazardous materials would leach into groundwater and contaminate surrounding areas. Those individuals residing next to Crazy Horse were the most at risk from improper dumping at the waste disposal site. Nonetheless, in reckless disregard of these facts, Firestone dumped the toxics at Crazy Horse. In sum, we conclude that these facts provide ample support for the conclusion that Firestone is liable for intentional infliction of emotional distress.
III. MEDICAL MONITORING
Firestone attacks the award of damages for future medical monitoring costs. It argues that such damages are simply a “back door” way in which to compensate respondents for injuries which have not yet occurred and which, according to Firestone, will probably never occur. Respondents argue that medical monitoring costs are necessary to detect the onset of cancer and claim that their increased risk of cancer is itself a physical injury which needs to be monitored. As we shall explain below, we conclude that the trial court erred in permitting respondents to recover these costs.
The problem with the medical monitoring costs is that there is no physical injury upon which they can be based. Respondents argue that the increase in risk in developing cancer is itself a physical injury sufficient to justify the medical monitoring costs. However, most of the courts that have considered the issue have concluded that an increase in risk cannot be characterized as a physical injury and is not compensable unless there is evidence that it is probable that the disease will occur. (See e.g. Hagerty v. L & L Marine Services, Inc. (5th Cir.1986) 788 F.2d 315, 319;DeStories v. City of Phoenix (App.1987) 154 Ariz. 604, 744 P.2d 705, 707; Schweitzer v. Consolidated Rail Corp. (3d Cir.) 758 F.2d 936, cert. den. (1985) 474 U.S. 864–865, 106 S.Ct. 183, 88 L.Ed.2d 152; Morrissy v. Eli Lilly & Co. (1979) 76 Ill.App.3d 753, 32 Ill.Dec. 30, 37, 394 N.E.2d 1369, 1376.) In general, the rationale of these cases is that an increase in risk less than 51% is too speculative to warrant recovery.
Some courts have circumvented the problem of an absence of physical injury in latent disease cases by simply holding that no physical injury is required. (See e.g. Ayers v. Jackson TP, (1987) 106 N.J. 557, 525 A.2d 287, 308–310; Burns v. Jaquays Min. Corp. (App.1988) 156 Ariz. 375, 752 P.2d 28; In re Paoli (3d Cir.1990) 916 F.2d 829; Askey v. Occidental Chemical Corp. (1984) 102 A.D.2d 130, 477 N.Y.S.2d 242; Merry v. Westinghouse Elec. Corp. (M.D.Pa.1988) 684 F.Supp. 847, 849.) In general, these courts have concluded that medical monitoring costs can be recovered so long as expert testimony establishes that the increase in risk is significant and that such costs are reasonable and necessary. In so doing, these courts have, in essence, created a new cause of action for monitoring costs which permits a plaintiff to recover the costs even though the plaintiff's physical injury has not yet manifested itself or the plaintiff is unable to establish that the disease is likely to occur in the future. The rationale for this result is that public policy concerns justify awarding plaintiffs the costs of the medical examinations necessary to detect the onset of cancer.
Although we are sympathetic to the concerns expressed in these cases, we are presently unwilling to create a new cause of action for medical monitoring costs. It may be that our Supreme Court will determine that such a cause of action is permissible, but until that time we decline to create a cause of action for medical monitoring.
Coover v. Painless Parker, Dentist (1930) 105 Cal.App. 110, 286 P. 1048 does not require a different result. In Coover, the plaintiff recovered for personal injuries suffered as a result of severe x-ray burns. At trial, there was testimony that the skin damage made plaintiff susceptible to cancer. On appeal, the defendant argued that the evidence regarding the possibility that plaintiff might develop cancer was uncertain and conjectural and should not have been considered by the jury.
The trial court disagreed, reasoning that “[w]hile the actual condition of cancer may have been conjectural and uncertain, the record contains positive evidence that a condition actually exists which makes this dread disease much more likely. We think this predisposition in itself is some damage, and when caused by the wrongful act of another it is an interference with the normal and natural conditions and rights of the other, which must be held to be a real and not a fanciful element of damage. The necessity of constantly watching and guarding against cancer, as testified to by the physician, is an obligation and a burden that the defendant had no right to inflict upon the plaintiff.” (Id. at p. 115, 286 P. 1048.)
In Coover, unlike the present case, there was expert testimony that the cancer was “very, very, likely” to occur. (Coover v. Painless Parker, Dentist, supra, 105 Cal.App. at p. 114, 286 P. 1048.) In addition, in Coover there was a physical injury apart from the likelihood that cancer would occur; the physical injury was the x-ray burn. Thus, we do not believe Coover supports the proposition that medical monitoring costs should be permitted in this case.
To be sure, we recognize that a toxic tort plaintiff faces a dilemma because of the long latency period often associated with exposure to hazardous substances. Considerations of splitting causes of action and the concern that “a single tort can be the foundation for but one claim for damages” may prevent a plaintiff from filing another suit once the disease actually develops. (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638, 134 P.2d 242; DeRose v. Carswell, supra, 196 Cal.App.3d at pp. 1021–1026, 242 Cal.Rptr. 368; but see Martinez–Ferrer v. Richardson–Merrell, Inc. (1980) 105 Cal.App.3d 316, 164 Cal.Rptr. 591.) Indeed, some courts have avoided this problem by holding that the rule does not apply in these types of circumstances. (See e.g. Mauro v. Raymark Industries, Inc. (1989) 116 N.J. 126, 561 A.2d 257, 267; Burns v. Jaquays Min. Corp., supra, 752 P.2d at p. 31; Ayers v. Jackson Tp., supra, 525 A.2d at pp. 302–303.) This may prove to be an acceptable solution to the problems posed by these types of cases.
However, we do not, and need not, decide that question here. We simply conclude that where, as here, the evidence establishes that a plaintiff has an increased risk of cancer but does not establish that the cancer is reasonably certain to occur or that there is a reasonable medical probability of it occurring, then recovery for medical surveillance costs should not be permitted. Recovery for fear of cancer is limited by the requirement that the emotional distress be genuine, serious, and reasonable; a limit must also be imposed upon recovery for medical monitoring costs. That limit already exists; it is the requirement of reasonable certainty. (Civ.Code, § 3283.)
In sum, we conclude that respondents' failure to establish that the cancer is reasonably certain to occur precludes them from recovering their medical monitoring costs. The award of monitoring costs must therefore be stricken.
IV. EXCESSIVE COMPENSATORY DAMAGES
Firestone argues that the compensatory damages are excessive. In considering this argument, we are mindful that “damages are excessive only where the recovery is so grossly disproportionate to the injury that the award may have been presumed to have been the result of passion or prejudice.” (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259, 259 Cal.Rptr. 311.) This means that the verdict is “so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption ․” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507, 15 Cal.Rptr. 161, 364 P.2d 337.) In addition, in reviewing the amount of damages, we must determine every conflict in evidence in respondents' favor and give them the benefit of every reasonable doubt. (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733.) The trial court's determination is entitled to great weight. (Fortman v. Hemco, Inc., supra, 211 Cal.App.3d at p. 259, 259 Cal.Rptr. 311.)
The $200,000 awarded to each respondent for fear of cancer is supported by the evidence that respondents live with an ever-present fear that their lives will be cut short by cancer. Experts testified to the fear, worry and anxiety experienced by each respondent. For example, there was testimony that Frank Potter “thinks all the time, day and night, about the chemicals in his body; although he tried to reassure himself that it would be all right․” Similarly, expert testimony revealed that Joe Plescia was “very anxious, probably in some ways most anxious of the group. He was extremely, sort of more knowledgeable, maybe more, had studied more and thought more about the whole issue of what these chemicals could do to people and to him and his family. He was very worried, it was creating a lot of problems for him․” In addition, Firestone's experts conceded that respondents' fears were genuine.
The amounts awarded for psychiatric illness and the present medical costs to treat that illness were (1) $135,000 to Frank Potter; (2) $38,000 to Shirley Potter; (3) $80,000 to Joseph Plescia; and (4) $16,500 to Linda Plescia. These amounts are distinct from the fear of cancer damages. There was evidence that three of the respondents suffered from post-traumatic stress disorder caused by exposure to the toxics; evidence that respondents suffered from nightmares and sleep disorders; evidence that Linda Plescia felt guilty that she may have somehow harmed her young children by drinking the water while they were in utero; evidence that the Potters' anxiety over the water contributed to their divorce; and evidence that the Plescias experienced marital difficulties due to the contamination. This evidence establishes that respondents experienced various psychological problems which were different from their fear that they might develop cancer.
The damages awarded for disruption of lives included (1) $20,000 to Frank Potter; (2) $25,000 to Shirley Potter; (3) $25,000 to Joseph Plescia; and (4) $38,100 (including lost wages) to Linda Plescia. The evidence demonstrated that the water contamination caused personal discomfort, aggravation and annoyance to respondents. They could not drink the water from their well. They could not take showers at their homes. Various agencies involved in testing the water and soil continually invaded their privacy.
We find the circumstances of this case to be persuasive, along with the evidence below, and the fact that the court itself, having viewed the testimony and evidence, thought that the amounts awarded were justified. Accordingly, viewing the evidence in respondents' favor, and giving them the benefit of every reasonable doubt, we conclude that the trial court's damage awards were not so large as to necessarily suggest that the awards were the result of passion or prejudice on the part of the trial court.
V. PUNITIVE DAMAGE AWARD
Firestone contends that the punitive damage award was improper because, among other things, (1) there was no evidence of corporate fraud, malice or oppression (Civ.Code, § 3294); (2) the damages were awarded as a lump sum; and (3) the award is unconstitutional. We conclude that these arguments are without merit.
Many of Firestone's arguments are based on its own interpretation of the evidence. For example, Firestone emphasizes that its policy requiring hazardous materials to be deposited at a Class I site was never revoked and therefore its conduct was not the result of conscious company policy. This argument is specious. Firestone seems to forget that company officials chose to ignore the waste disposal policy. Not only was the policy ignored, it was ignored because it cost too much. The fact that the policy was never formally revoked simply makes no difference. Firestone's actions in improperly disposing of its waste, and not its paper policy, are what is important.
Firestone contends that it is “hyperbolic” to state that Firestone ignored the waste disposal policy because there was a period when Firestone complied with it. However, whether Firestone deposited toxic wastes at Crazy Horse for three weeks or three months or three years is not the issue. Certainly there is little consolation to respondents in the fact that Firestone allegedly complied with its policy some of the time. The salient point is that Firestone officials, in conscious disregard of the health risks posed by their actions, chose to deposit Class I wastes at a Class II landfill. We think that the evidence clearly supports the trial court's determination that Firestone's conduct “displayed a conscious disregard for the rights and safety of others․”
Firestone also argues that the trial court erred because it imposed punitive damages for Firestone's conduct both before and after 1977. Firestone relies upon the trial court's statement that Firestone's conduct after 1977 “not only displayed a reckless disregard of the probability of causing emotional distress but also amounted to a ratification of its past acts in this regard.” However, the trial court's discussion of punitive damages clearly demonstrates that punitives were awarded based only upon Firestone's conduct after 1977. The trial court stated, “Finally, the conduct of defendant relative to its hazardous waste disposal practices after 1977 justifies the imposition of sanctions in the form of punitive and exemplary damages.” (Emphasis added.)
Firestone's next argument is that the trial court erred in awarding the punitive damages as a lump sum. It contends the award should have been made to each respondent. Although it would have been preferable if the trial court had segregated the punitive damages, we do not think that Firestone was prejudiced by the lump sum award. First, the purpose of punitive damages is to punish and deter reprehensible conduct; thus, in this respect, the lump sum does not prejudice Firestone. (See e.g. Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 404, 89 Cal.Rptr. 78; Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 820, 169 Cal.Rptr. 691, 620 P.2d 141.) Second, although the lump sum makes it impossible to determine the ratio of compensatory to punitive damages for each plaintiff, we still do not think Firestone was prejudiced. This is because even if one of the plaintiffs was awarded the bulk of the punitive damages and the other three plaintiffs were awarded, for example, only one dollar, the ratio of punitive damages to compensatory damages would still be within an acceptable range. (See e.g. Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 388–389, 202 Cal.Rptr. 204.)
Finally, Firestone argues that the award of punitive damages is unconstitutional. However, the various arguments it raises have been repeatedly rejected. (See e.g. Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 811, 174 Cal.Rptr. 348; Fleming v. Safeco Ins. Co. (1984) 160 Cal.App.3d 31, 42–43, 206 Cal.Rptr. 313; Toole v. Richardson–Merrell, Inc. (1967) 251 Cal.App.2d 689, 716–717, 60 Cal.Rptr. 398; Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at pp. 404–405, 89 Cal.Rptr. 78.) We, too, conclude that these arguments are without merit.
VI. AWARD OF COSTS AND PREJUDGMENT INTEREST
Firestone attacks the $407,785.95 awarded respondents in expert witness costs under Code of Civil Procedure section 998 and $468,091.44 in prejudgment interest awarded under Civil Code section 3291. It argues that respondents' $2 million joint offer to compromise their claims was invalid because it did not designate how it was to be divided among the four respondents. As a result, Firestone contends it is impossible to determine whether respondents in fact obtained a more favorable judgment. We agree.
Code of Civil Procedure section 998 allows a prevailing party to recover expert witness fees in certain circumstances: “(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs.”
In Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 254 Cal.Rptr. 840, the court determined that a joint offer to compromise, tendered by three plaintiffs, prevented the court from being able to determine “whether each plaintiff received a judgment more favorable than the offer.” (Id. at p. 409, 254 Cal.Rptr. 840, emphasis in original.) The court concluded: “To consider plaintiffs' joint settlement offer as valid would deprive defendant of the opportunity to evaluate the likelihood of each party receiving a more favorable verdict at trial. Such an offer makes it impossible to make such a determination after verdict. We hold that the joint settlement offer presented by plaintiffs was not a valid settlement offer under Code of Civil Procedure section 998 and the order after judgment directing defendant to pay to plaintiffs certain expert witness fees must be reversed.” (Id. at p. 410, 254 Cal.Rptr. 840.)
We agree with the reasoning in Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d 388, 254 Cal.Rptr. 840. Based upon this decision, we think the award of expert witness fees must also be reversed in this case. Respondents in this case made a joint settlement offer prior to trial. Because the offer was not apportioned among respondents, it is not possible to determine whether respondents received a more favorable judgment. (Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d 388, 254 Cal.Rptr. 840; see also Randles v. Lowry (1970) 4 Cal.App.3d 68, 84 Cal.Rptr. 321; compare Fortman v. Hemco, Inc., supra, 211 Cal.App.3d at pp. 261–264, 259 Cal.Rptr. 311 [even though joint offer of $1 million, $23 million judgment more favorable judgment even if entire amount of offer attributed to single plaintiff].) Thus, we think that the award of costs must be reversed. In addition, because an award of prejudgment interest under Civil Code section 3291 depends upon respondents receiving a more favorable judgment pursuant to Code of Civil Procedure section 998, it follows that the trial court also erred in its award of prejudgment interest.
VII. MISCELLANEOUS CONTENTIONS
Firestone raises a number of other points, including (1) the trial court did not consider the issue of comparative fault; (2) the award of damages for disruption of lives was improper; and (3) evidence was admitted improperly.2 We address these contentions below.
Firestone argues that the trial court should have considered the issue of comparative fault. In particular, Firestone urges that the fact that respondents smoked cigarettes required that the trial court apply principles of comparative fault before assessing damages against Firestone. We reject this contention.
Comparative fault is applicable only if the plaintiff's negligence is a proximate cause of the injury. “Negligence unrelated to the cause or causes of the accident is not a bar.” (Asplund v. Driskell (1964) 225 Cal.App.2d 705, 716, 37 Cal.Rptr. 652; see also Signorelli v. Potter (1954) 43 Cal.2d 541, 275 P.2d 449.) In this case, the fact that respondents smoked cigarettes is wholly unrelated to the circumstances which caused respondents' water supply to be contaminated with toxics. For comparative fault principles to apply, respondents' conduct would have had to contribute, in some manner, to this contamination.
The problem with Firestone's argument is that many substances are suspected of causing cancer. If we were to accept the contention that respondents' cigarette smoking justified applying principles of comparative fault, then diet or lifestyle could always reduce a defendant's liability in a case where the physical injury does not manifest itself immediately. Such a result would be unacceptable. In sum, respondents' decision to smoke cigarettes had no effect on the contamination of their well water with carcinogens and certainly cannot be used by Firestone to lessen its responsibility for its negligence in disposing of its hazardous waste.
Firestone also argues that it was error to award damages for “disruption of lives.” It contends the award contradicted the trial court's ruling that respondents could not recover property damages. However, we think the damages were properly included as a component of the emotional distress respondents suffered as a result of the well water contamination. The damages are compensation for personal annoyance, discomfort or aggravation caused by the disruption of the water supply. As the trial court determined, “Showers had to be taken at the homes of neighbors and friends, bottled drinking water had to be brought in and their [respondents'] privacy was invaded by an array of agencies involved in water and soil testing and well drilling.”
Firestone next attacks the trial court's rulings regarding several evidentiary matters. Specifically, Firestone argues that it was error for the trial court to admit (1) evidence that Firestone produced defective products; (2) evidence that Firestone failed to warn its workers of safety hazards and failed to provide them with proper ventilation and equipment; (3) evidence that Firestone planned to establish a plant in Mexico; (4) evidence regarding pollution and crop damage; (5) evidence that Firestone's plant manager disagreed with certain environmental regulations and referred to former California Governor Jerry Brown as a “commie, pinko liberal”; and (6) evidence that punitive damages were “therapy.”
We have reviewed the trial court's rulings on these matters and conclude that no error occurred. For example, it appears that the buildup of defective materials at the Firestone plant generated a large amount of waste. Respondents wanted to show that these materials added to Firestone's waste disposal problems. The trial court concluded, and we agree, that the evidence was admissible for this limited purpose.
Several other claims of error by Firestone are not supported by the record. Firestone's contention that the trial court improperly admitted evidence regarding safety hazards and pollution and crop damage are not supported by the record. With respect to the contention that the trial court erred in admitting evidence regarding a Firestone plant in Mexico, Firestone did not object to the testimony and also does not explain why it finds this evidence objectionable. Finally, the trial court's decision to admit the evidence regarding the attitudes of Firestone's plant manager and the issue of punitive damages were within the trial court's discretion. It does not appear reasonably probable that a different result would have occurred had the evidence been excluded.
The order after judgment directing Firestone to pay costs and interest pursuant to Civil Code section 3291 and Code of Civil Procedure section 998 is reversed. The award of damages for medical monitoring costs is reversed. In all other respects, the judgment is affirmed. Costs to respondents.
1. We note that courts have long permitted recovery for fear of a future disease or condition due to another's negligence where physical injury also exists. (See e.g. Annot., (1960) 71 A.L.R.2d 338; Annot., (1986) 50 A.L.R.4th 13; Gale & Goyer, Recovery For Cancerphobia and Increased Risk of Cancer (1985) 15 Cumb. Law Review 723; Dworkin, Fear of Disease And Delayed Manifestation Injuries: A Solution Or A Pandora's Box? (1984) 53 Ford. Law Rev. 527.) For example, recovery was permitted for fear of hydrophobia (rabies) in a number of cases. (See e.g. Friedmann v. McGowan (1898) 17 Del. 436, 42 A. 723, 724; Buck v. Brady (1909) 110 Md. 568, 569, 73 A. 277; Gamer v. Winchester (Tex.Civ.App.1937) 110 S.W.2d 1190, 1193.) Other situations where there has been recovery for fear of future consequences include fear after swallowing a needle in a piece of cake (Ward Baking Co. v. Trizzino (1928) 27 Ohio App. 475, 161 N.E. 557); fear that an automobile accident might result in epilepsy (Figlar v. Gordon (1947) 133 Conn. 577, 53 A.2d 645); fear of future paralysis after being struck by a train (Smith v. Boston & M.R.R. (1935) 87 N.H. 246, 177 A. 729, 738); and fear of cancer (Alley v. Charlotte Pipe & Foundry Co. (1912) 159 N.C. 327, 74 S.E. 885).
2. Firestone also argues that the trial court erred in finding liability based upon its conclusion that the disposal of toxic wastes at a Class II dump constituted an ultrahazardous activity for which Firestone was strictly liable. Because the negligence and intentional infliction of emotional distress theories support the award of damages, we decline to decide whether Firestone should have been held liable under this theory.
ELIA, Associate Justice.
CAPACCIOLI, Acting P.J., and PREMO, J., concur.