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Full Opinion
FRANK POTTER et al., Plaintiffs and Respondents,
v.
FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant.
Supreme Court of California.
*973 COUNSEL
Kaye, Scholer, Fierman, Hays & Handler, Pierce O'Donnell, Gerard Fox, Jeffrey Miles, McCutchen, Doyle, Brown & Enersen, John W. Fowler, John R. Reese, Patricia L. Walker, Warner & Hogan, Charles G. Warner and Harvey M. Grossman for Defendant and Appellant.
Wiley, Rein & Fielding, Thomas W. Brunner, Laura A. Foggan, Frederick S. Ansell, Stephen D. Goldman, Sullivan, Roche & Johnson, Cameron Kirk, Jr., James L. Kimble, Seyfarth, Shaw, Fairweather & Geraldson, Sue J. Scott, Randal L. Golden, David F. Zoll, Donald D. Evans, Robin S. Conrad, Jan S. Amundson, Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Pillsbury, Madison & Sutro, Sidney K. Kanazawa, Kevin M. Fong, Latham & Watkins, Ernest J. Getto, Cynthia H. Cwik, Charles F. Weiss, Nielsen, Merksamer, Parrinello, Mueller & Naylor, Steve Merksamer, John E. Mueller, Peter Fullerton, John Montgomery, Daniel J. Popeo, Richard A. Samp, Fred J. Hiestand, Catherine I. Hanson, Alice P. Mead and Christiana Geffen as Amici Curiae on behalf of Defendant and Appellant.
Stemple & Boyajian, Gordon A. Stemple, Richard Amerian, Sharon Munson Swanson and Robert K. Crawford for Plaintiffs and Respondents.
Douglas Devries, Leonard Sachs, Bruce Broillet, Robert Steinberg, Roland Wrinkle, Harvey R. Levine, Ian Herzog, Evan D. Marshall, Rouda, Feder & Tietjen, Ronald H. Rouda, Macon Cowles, Priscilla Budeiri, Arthur Bryant and Anne Bloom as Amici Curiae on behalf of Plaintiffs and Respondents.
Nossaman, Gunther, Knox & Elliott, Kurt W. Melchior, Brobeck, Phleger & Harrison, Tom M. Freeman, Thomas M. Peterson, William R. Irwin, Hill, Wynne, Troop & Meisinger, David W. Steuber, Kirk Pasich, Covington & Burling, Robert N. Sayler and William P. Skinner as Amici Curiae.
OPINION
BAXTER, J.
We granted review in this case to consider:
(1) whether emotional distress engendered by a fear of cancer or other serious physical illness or injury following exposure to a carcinogen or other toxic substance is an injury for which damages may be recovered in a negligence action in the absence of physical injury;
(2) whether Firestone Tire and Rubber Company is liable for intentional infliction of emotional distress under Christensen v. Superior Court (1991) 54 Cal.3d 868 [2 Cal. Rptr.2d 79, 820 P.2d 181];
*974 (3) whether the cost of future medical monitoring to detect the onset of cancer is a recoverable item of damage when, as a result of a defendant's negligence, a plaintiff has an increased risk of future illness but suffers no present physical injury or illness; and
(4) whether any effect should be given to evidence that a plaintiff has negligently ingested other toxic substances or carcinogens.
Our analysis of existing case law and policy considerations relevant to the availability of damages for emotional distress leads us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.
We also conclude, however, that an exception to this general rule is warranted if the toxic exposure that has resulted in the fear of cancer is caused by conduct amounting to "oppression, fraud, or malice," as defined in Civil Code section 3294. In such cases, a plaintiff should be allowed to recover without having to show knowledge that it is more likely than not that the feared cancer will occur, so long as the plaintiff's fear is otherwise serious, genuine and reasonable.
We find further that Christensen v. Superior Court, supra, 54 Cal.3d 868, precludes any liability for intentional infliction of emotional distress in the absence of a determination that Firestone's extreme and outrageous conduct was directed at plaintiffs or undertaken with knowledge of their presence and consumption of the groundwater, and with knowledge of a substantial certainty that they would suffer severe emotional injury upon discovery of the facts.
On the issue of medical monitoring costs, we hold that such costs are a compensable item of damages in a negligence action where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of the plaintiff's toxic exposure and that the recommended monitoring is reasonable.
Finally, we conclude that when a defendant in a negligence action demonstrates that a plaintiff's smoking is negligent and that a portion of the plaintiff's fear of cancer is attributable to the smoking, comparative fault principles may be applied to reduce the amount of recovery for emotional distress damages based on such fear.
*975 I.
FACTUAL AND PROCEDURAL BACKGROUND
This is a toxic exposure case brought by four landowners living adjacent to a landfill. As a result of defendant Firestone's practice of disposing of its toxic wastes at the landfill, the landowners were subjected to prolonged exposure to certain carcinogens. While none of the landowners currently suffers from any cancerous or precancerous condition, each faces an enhanced but unquantified risk of developing cancer in the future due to the exposure.
The following background facts are contained in the trial court's statement of decision following trial.
From 1963 until 1980, Firestone operated a tire manufacturing plant near Salinas. In 1967, Firestone contracted with Salinas Disposal Service and Rural Disposal (hereafter SDS), two refuse collection companies operating the Crazy Horse landfill (hereafter Crazy Horse), for disposal of its industrial waste. Firestone agreed to deposit its waste in dumpsters provided by SDS located at the plant site. SDS agreed to haul the waste to Crazy Horse and deposit it there.
Crazy Horse, a class II sanitary landfill owned by the City of Salinas, covers approximately 125 acres suitable for the disposal of household and commercial solid waste. Unlike dump sites that are classified class I, class II landfills such as Crazy Horse prohibit toxic substances and liquids because of the danger that they will leach into the groundwater and cause contamination.
At the outset of their contractual relationship, SDS informed Firestone that no solvents, cleaning fluids, oils or liquids were permitted at Crazy Horse. Firestone provided assurances that these types of waste would not be sent to the landfill.
Notwithstanding its assurances, Firestone sent large quantities of liquid waste to Crazy Horse, including banbury drippings (a by-product of the tire manufacturing process) containing a combination of semiliquid toxic chemicals. Firestone also sent liquid waste oils, liquid tread end cements, and solvents to the landfill.
In May 1977, Firestone's plant engineer, who was in charge of all environmental matters, sent a memorandum to Firestone's plant managers *976 and department heads. The memorandum, reflecting official plant policy, explained liquid waste disposal procedures and described the particular waste materials involved and the proper method of handling them.
In order to comply with this policy, Firestone initially made efforts 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. When noncompliance with the policy became widespread, the plant engineer sent another memorandum to plant management complaining about the lack of compliance and pointing out that the policy was required by California law.
During this time, the Salinas plant operated under a production manager who had been sent from Firestone's company headquarters in Akron, Ohio, for the purpose of "turning the plant around" and making it more profitable. This manager became angered over the costs of the waste disposal program and decided to discontinue it. As a consequence, Firestone's hazardous waste materials were once again deposited at Crazy Horse.
Frank and Shirley Potter owned property and lived adjacent to Crazy Horse. Joe and Linda Plescia were their neighbors.
In 1984, the Potters and the Plescias (hereafter plaintiffs) 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, plaintiffs filed separate suits against Firestone for damages and declaratory relief. Their complaints against Firestone stated causes of action for, inter alia, negligence, negligent and intentional infliction of emotional distress, and strict liability/ultrahazardous activity. The two cases were tried together in a court trial. After considering all the evidence, the court found that Firestone was negligent; that negligent and intentional infliction of emotional distress were established; and that Firestone's conduct was an ultrahazardous activity that would subject Firestone to strict liability for resulting damages. Judgment was entered in favor of plaintiffs.
In its statement of decision, the trial court concluded that Firestone's waste disposal practices from 1967 until 1974 constituted actionable negligence. In particular, it determined that Firestone's dumping of liquid and semiliquid wastes at Crazy Horse, despite having been told that such dumping was prohibited, fell below the appropriate standard of care. In rejecting *977 Firestone's argument that it was not negligent because the dangers posed by toxins were not widely known until the mid-1970's, the trial court concluded that: (1) Firestone had been informed by SDS that no solvents, cleaning fluids, oils or liquids were permitted at Crazy Horse; (2) it fell below the standard of care for a large, international corporation with scientific and legal experts in its employ, having been alerted to the impropriety of disposing of these wastes at the landfill, to violate these regulations without at least making reasonable inquiry into the reasons for the restrictions; and (3) if Firestone had made a minimal inquiry, it would have discovered, among other things, the dangers to groundwater from landfill leachates and the potential for contaminating domestic wells.
The trial court also concluded that Firestone was liable for intentional infliction of emotional distress. The court found that the 1977 memorandum detailing how liquid wastes should be disposed reflected Firestone's increased knowledge at that time about the dangers of toxic waste. Given the evidence regarding this memorandum and the fact that the memorandum represented Firestone's official waste disposal policy, the court concluded that Firestone's decision to dump its waste at Crazy Horse in violation of that policy in order to reduce costs was extreme and outrageous conduct.
Finally, the trial court determined that the dumping of large amounts of toxic wastes in a class II landfill constituted an ultrahazardous activity.
In finding liability, the trial court determined that the toxic chemicals in plaintiffs' drinking water were the same chemicals or "daughter" chemicals as those used at the Firestone plant. Firestone was the heaviest single contributor of waste at Crazy Horse, and the only contributor with the identical "suite" of chemicals to those found in the water. The court also noted the expert testimony established that the chemicals that migrated off the Firestone plant site so closely resembled those in the water that the comparison constituted a virtual "fingerprint" identifying Firestone as the source of the contaminants.
The court did not attribute any item of damage to any one specific theory of recovery. After noting that plaintiffs' likelihood of harm due to their toxic exposure was the subject of conflicting medical opinions at trial, the court concluded there was convincing evidence that the prolonged nature of the exposure had "enhanced" plaintiffs' risk of developing cancer and other maladies, and that this enhanced susceptibility was a "presently existing physical condition." The court observed that although there was no way to quantify this risk, the risk was nevertheless very real. In its view, reliable scientific opinion and common sense both supported the conclusion that a *978 prolonged period of exposure substantially increased the susceptibility to disease.
The court also stated that although plaintiffs testified to a constellation of physical symptoms which they 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 are 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." Based on these findings, plaintiffs were awarded damages totalling $800,000 for their lifelong fear of cancer and resultant emotional distress.
The court further concluded that since plaintiffs now live with an increased vulnerability to serious disease, it was axiomatic that they should receive periodic medical monitoring to detect the onset of disease at the earliest possible time and that early diagnosis was unquestionably important to increase the chances of effective treatment. Accordingly, the court awarded damages totalling $142,975 as the present value of the costs of such monitoring, based on plaintiffs' life expectancies.
The court also awarded plaintiffs damages totalling $269,500 for psychiatric illness and the cost of treating such illness,[1] as well as damages totalling $108,100 for the general disruption of their lives and the invasion of their privacy.[2] Finally, the court awarded punitive damages totalling $2.6 million based on Firestone's conscious disregard for the rights and safety of others in dumping its toxic wastes at the landfill after 1977.
Firestone appealed, arguing that the damage awards were not supported by any of the legal theories relied on by the trial court and that the evidence was insufficient to support the trial court's findings. It claimed that the award for "fear of cancer" in the absence of physical injury was an unwarranted extension of liability for negligent infliction of emotional distress, that if such fear is compensable it should not be so where the plaintiff cannot establish that he or she has a "probability" of developing cancer, and that the amount of damages awarded each plaintiff was not based on proof of individualized injury. The award for "psychiatric injury" was challenged on the ground that the injury was indistinguishable from fear of cancer and was not supported by the evidence.
*979 Firestone asserted a number of other errors in its appeal. It argued that intentional infliction of emotional distress had not been established because its conduct was not shown to be "extreme and outrageous," and the evidence did not support the finding that it was undertaken with the intent to cause, or reckless disregard of the probability of causing, such injury. Firestone further contended that the elements of a cause of action for strict liability for ultrahazardous activity had not been established, and that, in any event, if damages for fear of cancer could not be awarded on a negligence theory, it followed that they should not be awarded on a strict liability for ultrahazardous activity theory. Additionally, it challenged the damages awarded for medical monitoring on the ground that the amounts were not supported by the evidence and that the cost of medical examinations was not an item of damage that should be imposed on it.
Finally, Firestone argued that the trial court had erred in admitting and considering irrelevant evidence, that plaintiffs' comparative negligence had not been considered, that compensation for "disruption" of plaintiffs' lives was improper in an action in which property damages are not recoverable,[3] and that the court erred in assessing punitive damages.
The Court of Appeal reversed the awards for medical monitoring costs, as well as a postjudgment order directing Firestone to pay costs and interest, but otherwise affirmed the judgment. The court held that, given the circumstances in which plaintiffs ingested the carcinogens, it was unnecessary for them to establish a present physical injury in order to recover for their fear of cancer. It further held it was unnecessary for plaintiffs to prove they were likely to develop cancer, noting their fear was certain, definite and real, and not contingent on whether they in fact develop the disease. Plaintiffs had proven the elements of a negligence cause of action and had demonstrated, under an objective standard, that their emotional distress was serious. The court also held Firestone was properly found liable for intentional infliction of emotional distress. However, the court reversed the awards for medical monitoring costs because plaintiffs failed to establish that cancer was reasonably certain to occur, and did not address the challenge to the amount of those awards. The court affirmed the amount of the compensatory damages award and found the punitive damage award proper.
Because that court concluded that the negligence and intentional infliction of emotional distress causes of action supported the damage awards, it did not reach Firestone's claim that the trial court erred in finding that its conduct constituted an ultrahazardous activity for which it was strictly liable.
*980 II.
DISCUSSION
Before addressing the parties' claims, it would be useful to identify what is not at issue in this case and to reiterate what is. Firestone does not currently challenge, nor do we undertake to address, the correctness of the award for the general disruption to plaintiffs' lives. We also do not consider Firestone's perfunctory claim that the psychiatric illness component of the emotional distress award is erroneous.[4] (See People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15 [2 Cal. Rptr.2d 112, 820 P.2d 214].) Consequently, the only damages at issue here are the fear of cancer component of the emotional distress award, the award for medical monitoring costs and the award for punitive damages. We also consider whether Firestone may be held liable for intentional infliction of emotional distress under Christensen v. Superior Court, supra, 54 Cal.3d 868, and whether comparative fault principles regarding plaintiffs' smoking are properly invoked in this case.
A. Negligence: Fear of Cancer
"Fear of cancer" is a term generally used to describe a present anxiety over developing cancer in the future.[5] Claims for fear of cancer have been increasingly asserted in toxic tort cases as more and more substances have been linked with cancer. Typically, a person's likelihood of developing cancer as a result of a toxic exposure is difficult to predict because many forms of cancer are characterized by long latency periods (anywhere from 20 to 30 years), and presentation is dependent upon the interrelation of myriad factors.
The availability of damages for fear of cancer as a result of exposure to carcinogens or other toxins in negligence actions is a relatively novel issue *981 for California courts. Other jurisdictions, however, have considered such claims and the appropriate limits on recovery. Factors deemed important to the compensability of such fear have included proof of a discernible physical injury (e.g., Wisniewski v. Johns-Manville Corp. (3d Cir.1985) 759 F.2d 271, 274; Eagle-Picher Industries, Inc. v. Cox (Fla. Dist. Ct. App. 1985) 481 So.2d 517, 528-529; Payton v. Abbott Labs (1982) 386 Mass. 450 [437 N.E.2d 171, 180-181] [hereafter Payton]), proof of a physical impact or physical invasion (e.g., Herber v. Johns-Manville Corp. (3d Cir.1986) 785 F.2d 79, 85; Wilson v. Key Tronic Corp. (1985) 40 Wn.App. 802 [701 P.2d 518, 524] [hereafter Wilson]; Wetherill v. University of Chicago (N.D.Ill. 1983) 565 F. Supp. 1553, 1560 [hereafter Wetherill]), and objective proof of mental distress (e.g., Stites v. Sundstrand Heat Transfer, Inc. (W.D.Mich 1987) 660 F. Supp. 1516, 1526, 1527; Daley v. LaCroix (1970) 384 Mich. 4 [179 N.W.2d 390, 395]).
We must now consider whether, pursuant to California precedent, emotional distress engendered by the fear of developing cancer in the future as a result of a toxic exposure is a recoverable item of damages in a negligence action.
1. Parasitic Recovery: Immune System Impairment and/or Cellular Damage as Physical Injury
Because it initially appeared plaintiffs might have suffered damage to their immune systems, we solicited the views of the parties on whether such damage constitutes physical injury. (1) We did so because it is settled in California that in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages. (Crisci v. Security Insurance Co. (1967) 66 Cal.2d 425, 433 [58 Cal. Rptr. 13, 426 P.2d 173]; Merenda v. Superior Court (1992) 3 Cal. App.4th 1, 8-9 [4 Cal. Rptr.2d 87].) Where a plaintiff can demonstrate a physical injury caused by the defendant's negligence, anxiety specifically due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages. (E.g., Jones v. United Railroads of San Francisco (1921) 54 Cal. App. 744 [202 P. 919] [affirming damages for emotional distress endured up to time of trial where plaintiff reasonably feared permanent disability in the future as direct and proximate result from physical injury received in accident].)
Although the availability of parasitic damages for emotional distress engendered by a fear of developing cancer in the future appears to be an *982 issue of first impression in California,[6] other jurisdictions have concluded that such damages are recoverable when they are derivative of a claim for serious physical injuries. For example, the court in Ferrara v. Galluchio (1958) 5 N.Y.2d 16, 21-22 [176 N.Y.S.2d 996, 1000, 152 N.E.2d 249, 71 A.L.R.2d 331] upheld an award of emotional distress damages based on the plaintiff's fear of cancer where she had been negligently burned in X-ray treatments and later advised by a dermatologist to have her tissue examined every six months as cancer might develop. (Accord, Dempsey v. Hartley (E.D.Pa. 1951) 94 F. Supp. 918, 920-921 [fear of breast cancer due to traumatic breast injury]; Alley v. Charlotte Pipe & Foundry Co. (1912) 159 N.C. 327 [74 S.E. 885, 886] [fear stemming from sarcoma liable to ensue from burn wound].) In these cases, the existence of a present physical injury, rather than the degree of probability that the disease may actually develop, is determinative.
No California cases address whether impairment of the immune system response and cellular damage constitute "physical injury" sufficient to allow recovery for parasitic emotional distress damages. Courts in other jurisdictions that have considered this issue recently have come to differing conclusions.
Plaintiffs, citing several such cases, contend that immune system impairment and cellular damage is a physical injury for which parasitic damages for emotional distress are available. (E.g., Werlein v. United States (D.Minn. 1990) 746 F. Supp. 887, 901, 906 [chromosomal breakage and damage to cardiovascular and immunal systems sufficient to satisfy present physical injury requirement for recovery of emotional distress damages where medical experts were prepared to testify as to such injury and authenticity of plaintiffs' symptoms]; Anderson v. W.R. Grace & Co. (D.Mass. 1986) 628 F. Supp. 1219, 1226-1227 [subcellular harm or harm affecting body's ability to fight disease and causing harm to body's organ systems sufficient to support claim for emotional distress]; cf. Barth v. Firestone Tire and Rubber Co. (N.D.Cal. 1987) 661 F. Supp. 193, 196 [hereafter Barth] [determining that, under California law, injury to immune system is form of *983 actionable physical injury];[7]Brafford v. Susquehanna Corp. (D.Colo. 1984) 586 F. Supp. 14 [although availability of emotional distress damages not specifically discussed, claim for physical injury allowed to proceed where evidence showed that chromosomal damage caused by radiation operated to deprive plaintiffs of a certain degree of immunity].)
Conversely, Firestone contends that mere subcellular changes that are unaccompanied by clinically verifiable symptoms of illness or disease do not constitute a physical injury sufficient to support a claim for parasitic emotional distress damages. To support this contention, Firestone relies on a case in which workers' claims for fear of cancer from asbestos exposure were denied because they had failed to show that their fear was based on knowledge that their lungs were functionally impaired. (In re Hawaii Federal Asbestos Cases (D.Hawaii 1990) 734 F. Supp. 1563, 1569-1570.) There it was held that a physical injury was not established by the mere presence of asbestos fibers in the lungs or by evidence of physiological changes in the lungs such as pleural thickening and pleural plaques. (Id., at p. 1567.) Firestone also relies on cases holding that in the absence of some verifiable impairment, asbestos-related subcellular changes do not give rise to valid claims for physical injury. (E.g., Schweitzer v. Consolidated Rail Corp. (3d Cir.1985) 758 F.2d 936, 942 [although availability of emotional distress damages not discussed, subclinical injury resulting from exposure to asbestos held insufficient to constitute requisite actual loss or damage under Federal Employers' Liability Act]; Owens-Illinois v. Armstrong (1991) 87 Md. App. 699 [591 A.2d 544, 560-561] [pleural plaques and pleural scarring do not cause functional impairment or harm and therefore are not compensable].)
It is not clear from the record in this case, however, that these plaintiffs' emotional distress is parasitic to this type of supposed injury. The statement of decision by the trial court does not include an express finding that plaintiffs' exposure to the contaminated well water resulted in physical injury, cellular damage or immune system impairment. The court made no *984 mention of plaintiffs' immune system response, cellular systems or cells, and made no specific determination of damage or impairment thereto. While the trial court concluded that plaintiffs do have an enhanced "susceptibility" or "risk" for developing cancer and other maladies, it characterized this as a "presently existing physical condition," not as a physical injury. We conclude, therefore, that we lack an appropriate factual record for resolving whether impairment to the immune response system or cellular damage constitutes a physical injury for which parasitic damages for emotional distress ought to be available.[8]
2. Nonparasitic Fear of Cancer Recovery
We next determine whether the absence of a present physical injury precludes recovery for emotional distress engendered by fear of cancer. Firestone argues that California should not recognize a duty to avoid negligently causing emotional distress to another, but, if such a duty is recognized, recovery should be permitted in the absence of physical injury only on proof that the plaintiff's emotional distress or fear is caused by knowledge that future physical injury or illness is more likely than not to occur as a direct result of the defendant's conduct. Amici curiae, many of whom represent organizations of manufacturers and their insurers, would preclude all recovery for emotional distress in the absence of physical injury.
a. Independent Duty
Firestone first asks the court to expressly adopt the rule recently applied by the Supreme Court of Texas in Boyles v. Kerr (Tex. 1993) 855 S.W.2d 593. There the court held that there is no duty to avoid negligently causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff. (Id., at p. 594.)
(2) That is already the law in California. Indeed, the Texas court relied on recent decisions of this court in which we recognized that there is no independent tort of negligent infliction of emotional distress. (Boyles v. Kerr, supra, 855 S.W.2d at p. 599.) The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073 [9 Cal. Rptr.2d 615, 831 P.2d 1197] [hereafter Burgess]; Christensen v. Superior Court, supra, 54 Cal.3d 868, *985 890-891; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590 [257 Cal. Rptr. 98, 770 P.2d 278] [hereafter Marlene F.]; see also Anderson v. Northrop Corp. (1988) 203 Cal. App.3d 772, 776 [250 Cal. Rptr. 189].) That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. (Marlene F., supra, 48 Cal.3d at p. 590.)
The lesson of these decisions is: unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. (See Cooper v. Superior Court (1984) 153 Cal. App.3d 1008, 1012-1013 [200 Cal. Rptr. 746]; Quezada v. Hart (1977) 67 Cal. App.3d 754, 761-763 [136 Cal. Rptr. 815]; cf. Holliday v. Jones (1989) 215 Cal. App.3d 102, 117, 119 [264 Cal. Rptr. 448].)
(3a) Those limits on recovery for emotional distress caused by the negligent conduct of another do not aid Firestone here, however. Firestone did violate a duty imposed on it by law and regulation to dispose of toxic waste only in a class I landfill and to avoid contamination of underground water.[9] The violation led directly to plaintiffs' ingestion of various known and suspected carcinogens, and thus to their fear of suffering the very harm which the Legislature sought by statute to avoid. Their fear of cancer was proximately caused by Firestone's unlawful conduct which threatened serious physical injury.
This is not a case in which a negligence cause of action is predicated only on a claim that the defendant breached a duty to avoid causing emotional distress.
b. Absence of Physical Injury
Amici curiae argue that no recovery for emotional distress arising from fear of cancer should be allowed in any case unless the plaintiff can establish a present physical injury such as a clinically verifiable cancerous or precancerous condition. Amici curiae advance several legal and policy arguments to support this position. None is persuasive.
*986 Amici curiae first assert that, under California case law, the existence of a physical injury is a predicate to recovering damages for emotional distress in a negligence action unless the action involves "bystander" recovery (e.g., Thing v. La Chusa (1989) 48 Cal.3d 644 [257 Cal. Rptr. 865, 771 P.2d 814] [hereafter Thing]), or there is a "preexisting relationship" between the plaintiff and defendant (e.g., Marlene F., supra, 48 Cal.3d 583) which creates a duty to the plaintiff, neither of which is implicated here. This assertion is plainly without merit.
(4a) Significantly, we recently reaffirmed the principle that, in California, "damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact...." (Burgess, supra, 2 Cal.4th at p. 1074.) We held that "physical injury is not a prerequisite for recovering damages for serious emotional distress," especially where "there exists a `guarantee of genuineness in the circumstances of the case.' [Citation.]" (Id., at p. 1079.)
Contrary to amici curiae's assertions, this principle has never been restricted to cases involving bystanders or preexisting relationships. Notably, amici curiae cite no authority even suggesting such a limitation.[10] (3b) Nor is there any question but that Firestone had a duty to any person who might foreseeably come in contact with its hazardous waste to use care in the disposal of that material, care which includes compliance with all government regulations governing the location and manner of disposal. In this court Firestone has abandoned any claim that it was not negligent or that plaintiffs were not foreseeable victims of its negligence.[11]
Amici curiae next contend that substantial policy reasons nevertheless support a physical injury requirement for recovery of fear of cancer damages *987 where no preexisting relationship exists. They suggest that allowing recovery in the absence of a physical injury would create limitless liability and would result in a flood of litigation which thereby would impose onerous burdens on courts, corporations, insurers and society in general. Allowing such recovery would promote fraud and artful pleading, and would also encourage plaintiffs to seek damages based on a subjective fear of cancer. In amici curiae's view, a physical injury requirement is thus essential to provide meaningful limits on the class of potential plaintiffs and clear guidelines for resolving disputes over liability without the necessity for trial.
This argument overlooks the reasons for our decision to discard the requirement of physical injury. As we observed more than a decade ago, "[t]he primary justification for the requirement of physical injury appears to be that it serves as a screening device to minimize a presumed risk of feigned injuries and false claims. [Citations.]" (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 925-926 [167 Cal. Rptr. 831, 616 P.2d 813, Additional Information