FRANK POTTER et al., Plaintiffs and Respondents, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant, 6 Cal. 4th 965

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]; (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. 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 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 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 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 [sz'c] 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, as well as damages totalling $108,100 for the general disruption of their lives and the invasion of their privacy. 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.

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, 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. 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. (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. 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 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. 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 issue of first impression in California, 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 bum 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 actionable physical injury]; 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 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. 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.) 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, 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].) 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. 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.

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.

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. 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.

Amici curiae next contend that substantial policy reasons nevertheless support a physical injury requirement for recovery of fear of cancer damages 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, 16 A.L.R.4th 518] [hereafter Molien], disapproved on other grounds, Burgess, supra, 2 Cal.4th at p. 1074.) Such harm was “believed to be susceptible of objective ascertainment and hence to corroborate the authenticity of the claim.” (Molien, supra, 27 Cal.3d at p. 926.) In Molien, supra, 27 Cal.3d 916, we perceived two significant difficulties with the physical injury requirement.

First, “the classification is both over-inclusive and underinclusive when viewed in the light of its purported purpose of screening false claims.” (27 Cal.3d at p. 928.) It is overinclusive in that it permits recovery whenever the suffering accompanies or results in physical injury, no matter how trivial (ibid.), yet underinclusive in that it mechanically denies court access to potentially valid claims that could be proved if the plaintiffs were permitted to go to trial (id., at p. 929).

Second, we observed that the physical injury requirement “encourages extravagant pleading and distorted testimony.” (Molien, supra, 27 Cal.3d at p. 929.) We concluded that the retention of the requirement ought to be reconsidered because of the tendency of victims to exaggerate sick headaches, nausea, insomnia and other symptoms in order to make out a technical basis of bodily injury upon which to predicate a parasitic recovery for the more grievous disturbance, consisting of the mental and emotional distress endured. (Ibid.) Therefore, rather than adhere to what we perceived as an artificial and often arbitrary means of guarding against fraudulent claims, we acknowledged that “[t]he essential question is one of proof[.]” (Molien, supra, 27 Cal.3d at pp. 929-930.) Thus, “ ‘[i]n 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.]’ ” (Id., at p. 930, citing Rodrigues v.

State (1970) 52 Hawaii 156, 173 [472 P.2d 509, 520] [hereafter Rodrigues].) Our reasons for discarding the physical injury requirement in Mo-lien, supra, 27 Cal.3d 916, remain valid today and are equally applicable in a toxic exposure case. That is, the physical injury requirement is a hopelessly imprecise screening device—it would allow recovery for fear of cancer whenever such distress accompanies or results in any physical injury, no matter how trivial, yet would disallow recovery in all cases where the fear is both serious and genuine but no physical injury has yet manifested itself.

While we agree with amici curiae that meaningful limits on the class of potential plaintiffs and clear guidelines for resolving disputes in advance of trial are necessary, imposing a physical injury requirement represents an inherently flawed and inferior means of attempting to achieve these goals. c. Likelihood of Cancer in the Future We next consider whether recovery of damages for emotional distress caused by fear of cancer should depend upon a showing that the plaintiff’s fears stem from a knowledge that there is a probable likelihood of developing cancer in the future due to the toxic exposure.

This is a matter of hot debate among the parties and amici curiae. Firestone and numerous amici curiae argue that because fear of cancer claims are linked to a future harm which may or may not materialize, such claims raise concerns about speculation and uncertainty and therefore warrant a requirement that the plaintiff show the feared cancer is more likely than not to occur.

Plaintiffs and other amici curiae respond that such a requirement is inappropriate in the context of a mental distress claim, and that there are viable methods, apart from requiring quantification of the cancer risk, to screen claims and determine the reasonableness and genuineness of a plaintiff’s fears. Plaintiffs favor the approach adopted by the Court of Appeal, which requires the following showing. The toxic exposure plaintiff must first prove the elements of a negligence cause of action.

The plaintiff must then establish that his or her fear of cancer is serious, and that the seriousness meets an objective standard (i.e., the distress must be reasonable under the circumstances). Although a plaintiff is not required to establish that the cancer is likely to occur, the finder of fact should consider evidence regarding the likelihood that cancer will occur (i.e., evidence that the disease is only a remote possibility could lead a trier of fact to conclude that a plaintiff’s fears were unreasonable).

Finally, the finder of fact should test the genuineness of the plaintiff’s fear under the factors discussed in Molien, supra, 27 Cal.3d 916, including expert testimony, a juror’s own experience, and the particular circumstances of the case.

In affirming the fear of cancer award, the Court of Appeal remarked that “the fact that [plaintiffs’] water supply was contaminated by carcinogens is, by itself, surely a circumstance which is likely to cause emotional distress in most reasonable persons.” (Italics added.) In addition, although the Court of Appeal purported to call for a showing of the actual likelihood that the feared cancer will occur, the court indicated that the absence of such evidence is immaterial where, as here, the trier of fact finds a significantly increased risk of cancer. We decline to adopt the Court of Appeal’s approach.

Although the court properly recognized that a toxic exposure plaintiff is required to establish the reasonableness of his or her fear of cancer, it erred in concluding that reasonableness is established by the mere fact of an exposure to, or a significant increase in, the risk of cancer. A carcinogenic or other toxic ingestion or exposure, without more, does not provide a basis for fearing future physical injury or illness which the law is prepared to recognize as reasonable.

The fact that one is aware that he or she has ingested or been otherwise exposed to a carcinogen or other toxin, without any regard to the nature, magnitude and proportion of the exposure or its likely consequences, provides no meaningful basis upon which to evaluate the reasonableness of one’s fear. For example, nearly everybody is exposed to carcinogens which appear naturally in all types of foods.

Yet ordinary consumption of such foods is not substantially likely to result in cancer. (See Ames & Gold, Too Many Rodent Carcinogens: Mitogenesis Increases Mutagenesis (1990) 249 Science 970, 971, fn. 10 [observing that apples, celery, coffee, carrots, cauliflower, grapes, honey, orange juice, potatoes and many other common foods naturally produce carcinogenic pesticides that have been found to induce tumors when administered to rodents in large doses].) Nor is the knowledge of such consumption likely to result in a reasonable fear of cancer.

Moreover, permitting recovery for fear of cancer damages based solely upon a plaintiff’s knowledge that his or her risk of cancer has been significantly increased by a toxic exposure, without requiring any further showing of the actual likelihood of the feared cancer due to the exposure, provides no protection against unreasonable claims based upon wholly speculative fears.

For example, a plaintiff’s risk of contracting cancer might be significantly increased by 100 or more percent due to a particular toxic exposure, yet the actual risk of the feared cancer might itself be insignificant and no more than a mere possibility. As even plaintiffs appear to concede, evidence of knowledge that cancer is only a remote possibility could lead a trier of fact to conclude that a claimed fear is objectively unreasonable.

This concession only proves the point—the 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. Accordingly, we reject the Court of Appeal’s approach because it attaches undue significance to the mere ingestion of a carcinogen, and because it focuses on the increased risk of cancer in isolation.

We turn now to Firestone’s argument that fear of cancer should be compensable only where the fear is based upon knowledge that cancer is probable, i.e., that it is more likely than not that cancer will develop. In evaluating this argument, we first consider whether it is reasonable for a person to genuinely and seriously fear a disease that is not probable, and if so, whether the emotional distress engendered by such fear warrants recognition as a compensable harm.

We cannot say that it would never be reasonable for a person who has ingested toxic substances to harbor a genuine and serious fear of cancer where reliable medical or scientific opinion indicates that such ingestion has significantly increased his or her risk of cancer, but not to a probable likelihood. Indeed, we would be very hard pressed to find that, as a matter of law, a plaintiff faced with a 20 percent or 30 percent chance of developing cancer cannot genuinely, seriously and reasonably fear the prospect of cancer.

Nonetheless, we conclude, for the public policy reasons identified below, that emotional distress caused by the fear of a cancer that is not probable should generally not be compensable in a negligence action. As a starting point in our analysis, we recognize the indisputable fact that all of us are exposed to carcinogens every day. As one commentator has observed, “[i]t 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 Fordham L.

Rev. 527, 576, fns. omitted.) Thus, all of us are potential fear of cancer plaintiffs, provided we are sufficiently aware of and worried about the possibility of developing cancer from exposure to or ingestion of a carcinogenic substance. The enormity of the class of potential plaintiffs cannot be overstated; indeed, a single class action may easily involve hundreds, if not thousands, of fear of cancer claims. (See Willmore, In Fear of Cancerphobia (Sept. 28, 1988) 3 Toxics L. Rptr. (Bur.Nat.

Affairs) 559, 563 [hereafter Willmore].) With this consideration in mind, we believe the tremendous societal cost of otherwise allowing emotional distress compensation to a potentially unrestricted plaintiff class demonstrates the necessity of imposing some limit on the class. (See Borer v.

American Airlines, Inc. (1977) 19 Cal.3d 441, 447 [138 Cal.Rptr. 302, 563 P.2d 858] [hereafter Borer] [refusing to recognize a child’s right to recover for the loss of a parent’s consortium]; see also Thing, supra, 48 Cal.3d at pp. 664-665 [limiting bystander recovery of damages for negligent infliction of emotional distress].) Proliferation of fear of cancer claims in California in the absence of meaningful restrictions might compromise the availability and affordability of liability insurance for toxic liability risks. (See Willmore, supra, 3 Toxics L.

Rptr. at p. 563.) “Should [fear of cancer] liability continue to grow, and thereby lead to a substantial increase in toxic tort litigation, such liability insurance will become even more scarce and prohibitively expensive.” (Ibid.) In the end, the burden of payment of awards for fear of cancer in the absence of a more likely than not restriction will inevitably be borne by the public generally in substantially increased insurance premiums or, alternatively, in the enhanced danger that accrues from the greater number of residents and businesses that may choose to go without any insurance. (See Borer, supra, 19 Cal.3d at p. 447.) A second policy concern that weighs in favor of a more likely than not threshold is the unduly detrimental impact that unrestricted fear liability would have in the health care field.

As amicus curiae California Medical Association points out, access to prescription drugs is likely to be impeded by allowing recovery of fear of cancer damages in negligence cases without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently being prescribed and utilized. New data about potentially harmful effects may not develop for years.

If and when negative data are discovered and made public, however, one can expect numerous lawsuits to be filed by patients who currently have no physical injury or illness but who nonetheless fear the risk of adverse effects from the drugs they used.

Unless meaningful restrictions are placed on this potential plaintiff class, the threat of numerous large, adverse monetary awards, coupled with the added cost of insuring against such liability (assuming insurance would be available), could diminish the availability of new, beneficial prescription drugs or increase their price beyond the reach of those who need them most. (Cf.

Brown, supra, 44 Cal.3d at p. 1063 [emphasizing public policy favoring development and marketing of beneficial new drugs and relying on the same reasons in sharply limiting strict liability recovery against prescription drug manufacturers].) Moreover, in Burgess, supra, 2 Cal.4th at pages 1082-1084, we acknowledged the importance of considering the impact of emotional distress liability on the “crisis” in the availability and cost of medical malpractice insurance.

Although we were not persuaded in that case that the impact of such liability was sufficient to deny recovery for a mother’s emotional distress arising from the negligent delivery of her baby, we observed, inter alia, that the class of potential plaintiffs in that type of situation was clearly limited. (2 Cal.4th at p. 1084.) In stark contrast to the limited impact of emotional distress liability in the negligent delivery type of situation, fear of cancer liability in the context of physicians prescribing drugs will surely exacerbate the medical malpractice crisis.

Specifically, for every patient who might actually develop cancer because of a particular drug, there could be hundreds or thousands of patients who might allege they were negligently prescribed the drug. Not only will the additional expense of insuring against fear lawsuits and fear liability under these circumstances add to the cost of physician services, but physicians who would otherwise prescribe and administer new or innovative drugs might be discouraged from doing so for fear of potential liability.

This would inhibit physicians in their ability to provide quality care to patients, as well as increase the practice of defensive medicine. A third policy concern to consider is that allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure.

That is, to allow compensation to all plaintiffs with objectively reasonable cancer fears, even where the threatened cancer is not probable, raises the very significant concern that defendants and their insurers will be unable to ensure adequate compensation for those victims who actually develop cancer or other physical injuries. Consider, for instance, that in this case damages totalling $800,000 for fear of cancer were awarded to four plaintiffs. If the same recovery were to be allowed in large class actions, liability for this one type of injury alone would be staggering.

As one commentator astutely noted: “It would be a regrettable irony if in the rush to compensate the psychically injured we make it impossible to compensate those suffering of permanent and serious physical injuries.” (Will-more, supra, 3 Toxics L. Rptr. at p. 563.) A fourth reason supporting the imposition of a more likely than not limitation is to establish a sufficiently definite and predictable threshold for recovery to permit consistent application from case to case. (See Thing, supra, 48 Cal.3d at p. 664; Elden v.

Sheldon (1988) 46 Cal.3d 267, 276 [250 Cal.Rptr. 254, 758 P.2d 582].) Indeed, without such a threshold, the likelihood of inconsistent results increases since juries may differ over the point at which a plaintiff’s fear is a genuine and reasonable fear, i.e., one jury might deem knowledge of a 2 or 5 percent likelihood of future illness or injury to be sufficient (cf. Heider v. Employers Mutual Liability Ins. Co. (La.Ct.App. 1970) 231 So.2d 438, 442 [affirming award for plaintiff’s fear of becoming epileptic where experts estimated likelihood at 2 to 5 percent]), while another jury might not.

A more definite threshold will avoid inconsistent results and may contribute to early resolution or settlement of claims.

Finally, while a more likely than not limitation may foreclose compensation to many persons with genuine and objectively reasonable fears, it is sometimes necessary to “limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.” (Thing, supra, 48 Cal.3d at p. 666.) We have recognized, in analogous contexts, that restricting the liability of a negligent tortfeasor for emotional loss may be warranted in consideration of the following factors: the intangible nature of the loss, the inadequacy of monetary damages to make whole the loss, the difficulty of measuring the damage, and the societal cost of attempting to compensate the plaintiff. (Borer, supra, 19 Cal.3d at pp. 447-449; Baxter v.

Superior Court (1977) 19 Cal.3d 461, 464 [138 Cal.Rptr. 315, 563 P.2d 871] [refusing to recognize a parent’s cause of action for loss of a child’s consortium].) These considerations are equally relevant to fear of cancer claims in toxic exposure cases. Plaintiffs and amici curiae advance several reasons why a more likely than not threshold for fear of cancer claims should be rejected. None is convincing. First, plaintiffs argue that a more likely than not restriction is unworkable because the risk of contracting cancer from any one source is unquantifiable.

In their view; adoption of such a rule would effectively preclude any emotional distress recovery. We are unpersuaded by this argument because its factual premise appears highly suspect. Although the experts in this case asserted it was impossible to quantify the risk of cancer from any particular toxic exposure, experts in other cases do not share that view. For instance, in Clark v. Taylor (1st Cir. 1983) 710 F.2d 4, 14, an expert testified that the plaintiff’s risk of developing bladder cancer had increased from one in ten thousand to one in ten as a result of his exposure to benzidine.

In Sterling, supra, 855 F.2d 1188, 1205, the court found an increased risk for susceptibility to cancer of 25-30 percent. In Pollock v. Johns-Manville Sales Corp. (D.N.J. 1988) 686 F.Supp. 489, 490 (hereafter Pollock), an expert was prepared to testify that the plaintiff’s exposure to asbestos resulted in a 43 percent chance of cancer. In Dartez v. Fibreboard Corp. (5th Cir. 1985) 765 F.2d 456, 466. (hereafter Dartez), an expert testified that a person employed as insulator, who smoked moderately and was exposed to asbestos, would have a risk of lung cancer approaching 50 percent. Finally, in both Gideon v.

Johns-Manville Sales Corp. (5th Cir. 1985) 761 F.2d 1129, 1138 (hereafter Gideon), and Jackson v. Johns-Manville Sales Corp. (5th Cir.) 781 F.2d 394, 413, certiorari denied (1986) 478 U.S. 1022 [92 L.Ed.2d 743, 106 S.Ct. 3339], there was expert testimony in each case that the plaintiff had a greater than 50 percent risk of contracting cancer as a result of toxic exposure.

Second, plaintiffs and amici curiae point out that while decisions from other jurisdictions have employed a more likely than not limitation for the so-called “increased risk” claim, they have thus far declined to do so in the context of a fear of cancer claim. (E.g., Sterling, supra, 855 F.2d at pp. 1205-1206; Lavelle v.

Owens-Coming Fiberglas Corp. (1987) 30 Ohio Misc.2d 11 [507 N.E.2d 476, 480-481] [hereafter Lavelle]-, In re Moorenovich (D.Me. 1986) 634 F.Supp. 634, 636-637 [hereafter Moorenovich].) Those decisions, it is asserted, allowed recovery for a plaintiff’s fear of cancer in situations similar to those present here without proof that cancer was more likely than not to occur. (Sterling, supra, 855 F.2d at p. 1206; Moorenovich, supra, 634 F.Supp. at p. 637; see also Lavelle, supra, 507 N.E.2d at p. 481; Dartez, supra, 765 F.2d at pp. 467-468.) We remain unconvinced.

Although it is true that the cited cases permitted fear of cancer recovery so long as the plaintiffs’ fears were genuine and reasonable, many of them involved plaintiffs who, in addition to their emotional distress, sustained serious or permanent physical injury as a result of a particular toxic exposure. (Sterling, supra, 855 F.2d 1188 [kidney and liver damage, and numerous central nervous injuries]; Lavelle, supra, 507 N.E.2d 476, 478 [asbestosis]; Dartez, supra, 765 F.2d 456, 468 [plaintiff “injured” by accumulation of asbestos fibers in lungs].) It is clear from passages in these cases that the respective courts were acutely aware of the plaintiffs’ existing physical injuries and were deciding the appropriate basis for fear of cancer recovery in that context. (Sterling, supra, 855 F.2d at pp. 1205-1206; Lavelle, supra, 507 N.E.2d at pp. 480-481 [although court recognized that Ohio law generally allows recovery of emotional distress damages without accompanying physical injury, court repeatedly referred to plaintiff as “asbestosis-afflicted”]; Dartez, supra, 765 F.2d at p. 468 [observing that Texas law recognized the right to compensation for mental distress where such distress is the natural result of a physical injury, and finding that plaintiff had been “injured” by the accumulation of asbestos fibers in his lungs].) Because these cases were decided within the context of a much narrower class of potential plaintiffs, they did not implicate or address the important public policy considerations at issue here.

Moreover, many of plaintiffs’ cases do not warrant much weight because they were rendered by federal courts and have not been cited by the states whose laws they attempted to apply. For instance, in Moorenovich, supra, 634 F.Supp. 634, a federal district court applied a pure reasonableness standard for fear of cancer recovery in attempting to predict how the Maine Supreme Judicial Court would decide the issue.

The court, apparently finding no Maine authorities involving fear of cancer claims, simply relied on a case that had allowed bystander recovery for foreseeable emotional distress suffered by a mother who saw her baby choke on a foreign substance in baby food. (634 F.Supp. at p. 637.) The Maine courts have not cited Moorenovich, supra, 634 F.Supp. 634, at all. (See also Dartez, supra, 765 F.2d 456 [fear analysis not discussed or adopted by Texas courts]; Sterling, supra, 855 F.2d 1188 [not cited by Tennessee courts].) Similarly, in Lavelle, supra, 507 N.E.2d 476, a lower court in Ohio simply followed state decisional law that recognized a separate cause of action for serious emotional distress without a contemporaneous physical injury.

The lower court relied on state appellate authorities that were not decided in a fear of cancer context, and did not address the policy concerns identified in this case. Lavelle, supra, 507 N.E.2d 476, has not been cited by the Ohio appellate courts. Accordingly, we decline to follow the rationale of the above cases, for to do so would be to ignore substantial public policy concerns.

We are satisfied that the more likely than not threshold for fear of cancer claims in negligence actions strikes the appropriate balance between the interests of toxic exposure litigants and the burdens on society and judicial administration.

To summarize, we hold with respect to negligent infliction of emotional distress claims arising out of exposure to carcinogens and/or other toxic substances: Unless an express exception to this general rule is recognized, in the absence of a present physical injury or illness, damages 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.

Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer. The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer. 3.

Oppressive, Fraudulent or Malicious Conduct Plaintiffs argue that if damages for fear of cancer in the absence of physical injury are limited to cases in which the cancer will more likely than not occur, the court should distinguish intentional conduct. We agree that certain aggravated conduct may warrant different treatment. In this part, we recognize an exception to the general rule set out above. Plaintiffs suggest that the more likely than not threshold should not be applied where a defendant intentionally violates a statute or regulation prohibiting the disposal of toxins.

Plaintiffs are quick to point out that the policy concerns for limiting liability in ordinary negligence cases are not triggered in cases involving such defendants. Although an exception to the general rule appears appropriate, we do not believe it should focus on intentional violators of the law. For one thing, while a defendant may be aware that its conduct is wrong and potentially dangerous, it may not have knowledge of a particular statute or regulation proscribing it.

There may be times where a defendant does not specifically intend to violate the law, yet the defendant proceeds to act egregiously in conscious disregard of others. With these considerations in mind, we conclude it preferable to recognize an exception that focuses on the totality of circumstances in evaluating a defendant’s conduct.

Accordingly, we hold that a toxic exposure plaintiff need not meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant’s conduct in causing the exposure amounts to “oppression, fraud, or malice” as defined in Civil Code

section 3294, which authorizes the imposition of punitive damages. Thus, for instance, fear of cancer damages may be recovered without demonstrating that cancer is probable where it is shown that the defendant is guilty of “despicable conduct which is. carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ.

Code, § 3294, subd. (c)(1) [defining one type of malice].) “A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences.” (BAJI No. 14.71 (1992 rev.) (7th ed. pocket pt.) [defining “malice”].) When a defendant acts with oppression, fraud or malice, no reason, policy or otherwise, justifies application of the more likely than not threshold.

Any burden or consequence to society from imposing liability is offset by the deterrent impact of holding morally blameworthy defendants fully responsible for the damages they cause, including damage in the form of emotional distress suffered by victims of the misconduct who reasonably fear future cancer. Under such circumstances, the potential liability of a defendant is not disproportionate to culpability.

While the imposition of liability for emotional distress resulting from negligent handling of toxic substances may result in costs out of proportion to the culpability of the negligent actor, this concern is diminished or nonexistent when the conduct is despicable and undertaken in conscious disregard of the danger to the health or interests of others. The significance of the size of the potential class of plaintiffs is similarly diminished and the moral blame heightened since the defendant is aware of the danger posed by its conduct and acts in conscious disregard of the known risk. (Cf. Amaya v.

Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 315 [29 Cal.Rptr. 33, 379 P.2d 513], overruled on other grounds, Dillon v.

Legg (1968) 68 Cal.2d 728, 748 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.RJd 1316] [“[T]he increased liability imposed on an intentional wrongdoer . . . reflects] the psychological fact that solicitude for the interests of the actor weighs less in the balance as his moral guilt increases and the social utility of his conduct diminishes.”].) For these reasons, the more likely than not threshold should not be available as a shield when the defendant acts with a sufficient degree of moral blameworthiness.

Once the plaintiff establishes that the defendant has acted with oppression, fraud or malice, the plaintiff must still demonstrate that his or her fear of cancer is reasonable, genuine and serious in order to recover damages. In determining what constitutes reasonable fear, we refer to our previous discussion at part H.A.2.C., ante, in which we observed that it is not enough for a plaintiff to show simply an ingestion of a carcinogen or a significant increase in the risk of cancer. In addition, the plaintiff must show that his or her actual risk of cancer is significant before recovery will be allowed.

Under this reasoning, a plaintiff’s fear is not compensable when the risk of cancer is significantly increased, but remains a remote possibility.

To reiterate, in the absence of a physical injury or illness, a plaintiff may recover damages for negligently inflicted emotional distress engendered by a fear of cancer without meeting the more likely than not threshold if the plaintiff pleads and proves that: (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff, he or she is exposed to a toxic substance which threatens cancer; (2) the defendant, in breaching its duty to the plaintiff, acted with oppression, fraud or malice as defined in Civil Code

section 3294; and (3) the plaintiff’s fear of cancer stems from a knowledge, corroborated by reliable medical or scientific opinion, that the toxic exposure caused by the defendant’s breach of duty has significantly increased the plaintiff’s risk of cancer and has resulted in an actual risk of cancer that is significant. In our view, Firestone’s conduct brings this case within the “oppression, fraud or malice” exception for recovery of fear of cancer damages.

The trial court determined that in May of 1977, officials in key management positions at Firestone’s Salinas plant had increased knowledge regarding the dangers involved with the careless disposal of hazardous wastes, and had a specific, written policy for hazardous waste disposal. However, these officials, while professing support for the policy in written distributions, in actuality largely ignored the policy.

The court found especially reprehensible the fact that Firestone, through its plant production manager, actively discouraged compliance with its internal policies and California law solely for the sake of reducing corporate costs. Under these circumstances, we believe there are sufficient facts supporting the trial court’s conclusion that such conduct displayed a conscious disregard of the rights and safety of others. B.

Intentional Infliction of Emotional Distress The trial court ruled that after May 1977, Firestone’s continued dumping of its hazardous wastes at Crazy Horse amounted to outrageous conduct: “The materials were known to be and specifically designated as hazardous. It was clear that there was a great probability of these materials infiltrating and contaminating neighboring wells. Defendant had to realize that the eventual discovery of such a condition by those drinking the contaminated water would almost certainly result in their suffering severe emotional distress.

In fact, with the knowledge that the defendant had at this time there also would have come an understanding of the dangerous condition that had been created by the dumping that had taken place over previous years. Nevertheless, defendant went ahead with its illegal dumping. This 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.” The court then determined that plaintiffs suffered severe emotional distress as a direct result of Firestone’s intentional acts. The Court of Appeal, relying on Nally v.

Grace Community Church of the Valley (1988) 47 Cal.3d 278, 300 [253 Cal.Rptr. 97, 763 P.2d 948] and Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, footnote 7 [233 Cal.Rptr. 308, 729 P.2d 743], agreed that Firestone’s conduct after 1977 was sufficiently extreme and outrageous to support liability for intentional infliction of emotional distress. The court noted in particular Firestone’s knowledge of the health hazards posed by its dumping and its deliberate disregard of these hazards in an effort to cut costs.

We next consider whether Firestone was properly found liable for intentional infliction of emotional distress, and if not, whether the award for punitive damages is otherwise appropriate. 1. The Christensen Requirements for Intentional Infliction of Emotional Distress After the Court of Appeal rendered its decision, we issued our opinion in Christensen v. Superior Court, supra, 54 Cal.3d 868 (hereafter Christensen), and asked the parties to address the impact of that opinion on the award of compensatory and punitive damages for intentional infliction of emotional distress in this case.

As we will explain, it is questionable whether the record here supports a finding of intentional infliction of emotional distress by Firestone. “The elements of the tort of intentional infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Christensen, supra, 54 Cal.3d at p. 903.) In Christensen, supra, we held that “ ‘[t]he law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant. ’ [Citation.] The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. [Citations.] Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory. [Citation.]” (Christensen, supra, 54 Cal.3d at pp. 905-906, italics in original, fn. omitted.) Thus, “[i]t is not enough that the conduct be intentional and outrageous.

It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra, 54 Cal.3d at p. 903, italics added.) “The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.” (Id., at p. 904; see Ochoa v.

Superior Court (1985) 39 Cal.3d 159, 165, fn. 5 [216 Cal.Rptr. 661, 703 P.2d 1].) In this case, it is ambiguous whether the lower courts determined that Firestone’s conduct was directed at these particular plaintiffs in the sense intended by Christensen, supra, 54 Cal.3d at pages 903-906.

Although the Court of Appeal correctly rejected Firestone’s contention that Firestone was not liable because it did not know the particular names of any individual whose groundwater was contaminated by the hazardous waste, it is unclear whether it believed that Firestone was actually aware of the presence of these particular plaintiffs and their consumption and use of the water. Furthermore, it is questionable whether the trial court made a finding that Firestone possessed the requisite knowledge, and if so, whether such a finding would be supported by substantial evidence.

Although the trial court concluded that Firestone “had to realize” that the eventual discovery of the toxic contamination “by those drinking the contaminated water would almost certainly result in their suffering severe emotional distress,” this may be interpreted in one of two ways. First, this may have been a finding that Firestone actually knew of these particular plaintiffs and their consumption of the water, and nevertheless sent prohibited wastes to Crazy Horse despite a realization that plaintiffs would almost certainly suffer severe emotional distress upon their discovery of the facts.

Alternatively, this may have been a finding that Firestone had to have realized that its misconduct was almost certain to cause severe emotional distress to any person who might foresee-ably consume the water and subsequently discover the facts. Although the knowledge requirement is met under the first

interpretation of the court’s ruling, it is not satisfied under the second because knowledge of these particular plaintiffs is lacking. This conclusion is consistent with the result reached in Christensen, supra, 54 Cal.3d 868, itself.

There we held that, even though it was alleged that defendants’ conduct in mishandling the remains of deceased persons was intentional and outrageous and was substantially certain to cause extreme emotional distress to relatives and close friends of the deceased, the plaintiffs’ cause of action for intentional infliction of emotional distress was not sufficiently supported where there was no allegation that the defendants’ misconduct was directed primarily at plaintiffs, or that it was calculated to cause them severe emotional distress, or that it was done with knowledge of their presence and with a substantial certainty that they would suffer severe emotional injury. (Christensen, supra, 54 Cal.3d at pp. 903, 906.) 2.

Threshold for Recovery For guidance of the lower courts should the Court of Appeal determine that a retrial on this claim is appropriate, we hold that recovery of fear of cancer damages in actions for intentional infliction of emotional distress should not depend on a showing of a medically corroborated belief that it is more likely than not that the plaintiff will develop the feared cancer as a result of the toxic exposure. The reasons for not applying the more likely than not threshold are obvious.

First, the intentional infliction cause of action requires a showing of “extreme and outrageous conduct” which is directed at the plaintiff. (Christensen, supra, 54 Cal.3d at p. 903.) Thus, a high degree of culpability is required which justifies recovery of greater damages by a broader group of plaintiffs than allowed in an ordinary negligence action. (See id., at p. 906.) Moreover, where a defendant undertakes extreme and outrageous conduct toward the plaintiff, the concern that liability will be imposed out of proportion to fault is not present.

Finally, the requirement of extreme and outrageous conduct directed at the plaintiff places adequate limitations on the class of potential plaintiffs who might sue for fear of cancer under this theory. Therefore, the public policy concerns supporting application of the heightened threshold (see pt. II.A.2.C., ante) are not implicated.

Of course, even though the heightened threshold is not applicable in intentional infliction actions, it must nevertheless be established that the plaintiff’s fear of cancer is reasonable, that is, that the fear is based upon medically or scientifically corroborated knowledge that the defendant’s conduct has significantly increased the plaintiff’s risk of cancer and that the plaintiff’s actual risk of the threatened cancer is significant.

Reasonableness of the fear is required because in intentional infliction actions, recovery is allowed only for “severe or extreme emotional distress.” (Christensen, supra, 54 Cal.3d at p. 903.) Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” (Girard v. Ball (1981) 125 Cal.App.3d 772, 787-788 [178 Cal.Rptr. 406], citing Fletcher v. Western Life Ins.

Co. (1970) 10 Cal.App.3d 376, 397 [89 Cal.Rptr. 78, 47 A.L.R.3d 286]; see Rest.2d Torts, § 46, com. j, p. 78 [“distress must be reasonable and justified under the circumstances”].) 3. Punitive Damages As indicated in

part II.A.3., ante, we believe there is sufficient evidence to support the trial court’s conclusion that Firestone acted reprehensibly in conscious disregard of the rights and safety of others. But because the trial court was of the view that Firestone’s conduct constituted intentional infliction of emotional distress when it assessed punitive damages against Firestone, and might not have made the award or might have awarded a lesser sum had it not made that finding, that aspect of the judgment should also be reversed.

It is not necessary therefore to consider Firestone’s several challenges to the propriety of awarding punitive damages in this case. For guidance of the court should there be a retrial we note, however, that punitive damages sometimes may be assessed in unintentional tort actions under Civil Code

section 3294 (see SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907 [200 Cal.Rptr. 497]; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 811 [174 Cal.Rptr. 348] [no constitutional infirmity in applying Civ. Code, § 3294 to unintentional tort]), so long as “actual, substantial damages” have been awarded (see Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147 [279 Cal.Rptr. 318, 806 P.2d 1353] [“actual damages are an absolute predicate for an award of punitive damages”]; Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal.App.3d 888, 892 [91 Cal.Rptr. 142]). C.

Medical Monitoring Costs In the context of a toxic exposure action, a claim for medical monitoring seeks to recover the cost of future periodic medical examinations intended to facilitate early detection and treatment of disease caused by a plaintiff’s exposure to toxic substances. (Ayers v. Jackson Tp. (1987) 106 NJ. 557 [525 A.2d 287, 308, 76 A.L.R.4th 571] [hereafter Ayers].) We shall now undertake to decide whether and under what circumstances a toxic exposure plaintiff may recover medical monitoring damages in a negligence action.

The trial court awarded medical monitoring damages to plaintiffs, determining that “[s]ince plaintiffs must 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.” The Court of Appeal reversed. Citing Civil Code

section 3283, the court concluded that such an award must be based upon either a present physical injury or a threat of a future injury that is more likely than not to occur, and that neither had been demonstrated here. Firestone and amici curiae urge us to affirm the Court of Appeal judgment in this regard. Essentially, Firestone, amici curiae, and the Court of Appeal assume that the reasonableness of medical intervention, and hence compensability, is dependent upon the sufficiency of proof that the occurrence of the disease is reasonably certain.

Firestone points to various cases in other jurisdictions that share similar views. (E.g., Ball v. Joy Manufacturing Co. (S.D.W.Va. 1990) 755 F.Supp. 1344, 1372 [denying medical monitoring damages where plaintiff had not suffered present demonstrable injury]; Villari v Terminix International, Inc. (E.D.Pa. 1987) 663 F.Supp. 727, 735 [observing that, under Pennsylvania law, plaintiff seeking costs of medical surveillance as element of damages must demonstrate some physical injury].) We are not convinced by these decisions and find the Court of Appeal’s analysis in Miranda v.

Shell Oil Co. (1993) 17 Cal.App.4th 1651 [15 Cal.Rptr.2d 569] (hereafter Miranda) persuasive. In Miranda, the court observed that “[t]he cost of anticipated medical care reasonably certain to be required in the future has long been held to be a proper item of recoverable damages under [Civil Code

section 3333].[] (Buswell v. City and County of San Francisco (1948) 89 Cal.App.2d 123, 133 [200 P.2d 115].) In our view, expenditures for prospective medical testing and evaluation, which would be unnecessary if the particular plaintiff had not been wrongfully exposed to pollutants, are a correlative detriment within

section 3333. (See [In re Paoli R.R. Yard PCB Litigation (3d Cir. 1990) 916 F.2d 829, 852]; and Coover v. Painless Parker, Dentist (1930) 105 Cal.App. 110, 115 [286 P. 1048].) Thus, such a plaintiff may collect damages from the tortfeasor measured by the ‘reasonable medical and other expenses’ to be incurred for monitoring. (Rest.2d Torts, § 924; see [citations].) “We have found no authority which limits the applicability of Civil Code

section 3333 to those situations where physical injury is evident. Civil Code

section 3282 defines ‘detriment’ as ‘a loss or harm suffered in person or property.’ ‘Harm,’ under the Restatement Second of Torts means ‘the existence of loss or detriment in fact of any kind to a person . . . .’ (Rest.2d Torts, § 7, subd. (2), italics added.) The Restatement distinguishes ‘physical harm’ by classifying it as ‘the physical impairment of the human body, or of land or chattels.’ ([Id.,] § 7, subds. (2) and (3).) According to the Restatement’s analysis, a plaintiff is entitled to recover damages from the tortfeasor for all ‘harm’—as opposed to ‘physical harm’—‘past, present and prospective, legally caused by the tort.’ ([Id.,] § 910; see also [id.,] § 7, com. d.; & [id.,] § 917.” (Miranda, supra, 17 Cal.App.4th at pp. 1656-1657.) In holding that recovery of medical monitoring damages is not contingent upon a showing of a present physical injury or upon proof that injury is reasonably certain to occur in the future, the Miranda court aligned itself with a number of other courts that have considered the issue. (E.g., Ayers, supra, 525 A.2d 287, 312-313; In re Paoli R.R.

Yard PCB Litigation (3d Cir. 1990) 916 F.2d 8

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