CACI 1622 Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements

California Civil Jury Instructions CACI

1622 Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/her/nonbinary pronoun] to suffer serious 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 plaintiff] was exposed to [insert applicable carcinogen, toxic substance, HIV, or AIDS] as a result of [name of defendant]’s negligence;

2.That [name of plaintiff] suffered serious emotional distress from a fear that [he/she/nonbinary pronoun] will develop [insert applicable cancer, HIV, or AIDS] as a result of the exposure;

3.That reliable medical or scientific opinion confirms that it is more likely than not that [name of plaintiff] will develop [insert applicable cancer, HIV, or AIDS] as a result of the exposure; and

4.That [name of defendant]’s negligence 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.

Directions for Use

Use this instruction in a negligence case if the only damages sought are for emotional distress. The doctrine of “negligent infliction of emotional distress” is not a separate tort or cause of action. It simply 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 813].)

Recovery for emotional distress without other current harm or injury is allowed for negligent exposure to a disease-causing substance, but only if the plaintiff can 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, 997 [25 Cal.Rptr.2d 550, 863 P.2d 795.) There may be other harmful agents and medical conditions that could support this claim for damages.

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.

If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice, then CACI No. 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, should be read.

The explanation in the last paragraph of what constitutes “serious” emotional distress comes from the California Supreme Court. (See Moliensupra, 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

“ ‘[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. 986, internal citation omitted.)

“[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases where the feared cancer is at best only remotely possible, is to require a showing of the actual likelihood of the feared cancer to establish its significance.” (Potter, supra, 6 Cal.4th at p. 990.)

“[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.)

“ ‘[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. 927–928.)

“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.” (Wongsupra, 189 Cal.App.4th at p. 1378.)

“[W]e hold that the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable.” (Potter, supra, 6 Cal.4th at p. 1009.)

“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].)

“[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 pp. 965, 1011.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1174
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)