Torts Handouts

ZASLOW v. KROENERT Supreme Court of California 29 Cal.2d 541, 176 P.2d 1 (1946) [Plaintiff and defendant received title to a house as tenants in common. A dispute over ownership arose, and defendant and her agent took possession of the house and changed the locks on the doors. They removed plaintiff’s furniture and put it in storage, after notifying plaintiff that they would do so if he did not remove it from the house. Plaintiff brought an action for conversion of the furniture, and was given judgment for its full value. Defendant appeals.] EDMONDS, Justice. . . . . Stated generally, “conversion is any act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.” . . . The liability of one in possession of real property for the conversion of personal property which he finds upon it, depends, in most cases, upon a determination of whether the conduct of the defendant indicates an assumption of control or ownership over the goods. It is clear that, under some circumstances, refusal of one in possession of real property to permit, upon demand, the owner of chattels which were left there to remove his goods, constitutes conversion. . . . And if the possessor of the real estate appropriates the chattels to his own use in obvious defiance of the owner's rights, he is liable to the owner for the conversion of them. . . . However, every failure to deliver is not such a serious interference with the owner's dominion that the defendant should be required to pay the full value of the goods. . . . And the act of taking possession of a building and locking it does not, of itself, constitute a conversion of the personal property therein. Nor does the permission of the possessor of the realty by which personal property is allowed to remain upon the premises make him liable for the goods. . . . To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property. Thus, in Poor v. Oakman, [104 Mass. 309], a person rightfully took possession of a building and put a new lock on the door. He knew that the owner of some furniture then in the building had a key to the old lock. It was held that, in the absence of any evidence tending to prove a claim to the furniture, or any act which hindered the owner from removing it, as the contest was for the possession of the building, the possessor of the real estate was not liable for conversion of the furniture. . . . In the present case, the court found only that Mrs. Kroenert and Chapman “took and carried away all the personal property and effects” of Zaslow, such taking being without his consent, express or implied. Admittedly, what Chapman did in this regard was to place the goods in storage: there is no evidence tending to prove that either he or Mrs. Kroenert otherwise exerted any dominion over Zaslow's personal property in denial of or inconsistent with his rights. If, upon demand for the return of the chattels, they had prevented the removal of the goods, such

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acts would have constituted evidence of a conversion. But here the controversy between the parties concerned the occupancy of the house; no demand was made for the return of the personal property. While there is no evidence showing any conduct amounting to conversion, there is proof that Chapman, as the agent of Mrs. Kroenert, acted as custodian of the goods, recognizing Zaslow's complete title and right to them. The defendants did not use the goods. About a month and one-half after Mrs. Kroenert, by Chapman, took possession of the realty, she stated in a letter either received by or shown to Zaslow, that he could secure possession of his personal property by applying at the attorney's office. Zaslow neither said nor did anything in response thereto. Where the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of or damages to the personal property, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use. . . . As Zaslow was a cotenant and had the right of possession of the realty, which included the right to keep his personal property thereon, Chapman's act of placing the goods in storage, although not constituting the assertion of ownership and a substantial interference with possession to the extent of a conversion, amounted to an intermeddling. Therefore, Zaslow is entitled to actual damages in an amount sufficient to compensate him for any impairment of the property or loss of its use. But as the evidence shows $3,500 as the highest value placed upon the goods and it is undisputed that they were not damaged while in storage for about four months, the amount awarded by the judgment has no support in the evidence. For these reasons, the judgment is reversed with directions to the trial court to redetermine the amount of damages caused by the ouster and the trespass to the personal property.

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RUSSELL-VAUGHN FORD, INC. v. ROUSE Supreme Court of Alabama. 281 Ala. 567, 206 So.2d 371 (1968). [Plaintiff went to the place of business to discuss trading his Falcon for a new Ford. Following an initial inquiry, plaintiff returned to Russell-Vaughn Ford with his wife and children, and finally a third time, with a friend. On this last occasion, a salesman asked him for the keys to his Falcon and he turned them over while inspecting new cars. The defendant had increased the difference between the price of the new car and the trade-in originally offered for plaintiff’s car, and plaintiff declined to trade on this basis. He asked for his keys to be returned and all of the employees denied knowing where they were. Despite his frequent demands, the employees laughed at him as if the entire matter was a “big joke.” Plaintiff called the police department, and after the policeman arrived, one of the salesmen threw the keys to plaintiff “with the statement that he was a cry baby” and that “they just wanted to see him cry a while.” The plaintiff sued the company and two salesmen for conversion of his Falcon; the jury returned a general verdict for $5000; and defendants appealed.] SIMPSON, Justice. . . . The appellants have made several assignments of error. Initially it is argued that the facts of this case do not make out a case of conversion. It is argued that the conversion if at all, as a conversion of the keys to the automobile, not of the automobile itself. It is further contended that there was not under the case here presented a conversion at all. We are not persuaded that the law of Alabama supports this proposition. As noted in Long- Lewis Hardware Co. v. Abston, 235 Ala. 599, 180 So. 261: “It has been held by this court that 'the fact of conversion does not necessarily import an acquisition of property in the defendant.' Howton v. Mathias, 197 Ala. 457, 73 So. 92, 95. The conversion may consist, not only in an appropriation of the property to one's own use, but in its destruction, or in exercising dominion over it in exclusion or defiance of plaintiff's right.”. . . It is not contended that the plaintiff here had no right to demand the return of the keys to his automobile. Rather, the appellants seem to be arguing that there was no conversion which the law will recognize under the facts of this case because the defendants did not commit sufficient acts to amount to a conversion. We cannot agree. A remarkable admission in this regard was elicited by the plaintiff in examining one of the witnesses for the defense. It seems that according to salesman for Russell-Vaughn Ford, Inc. it is a rather usual practice in the automobile business to “lose keys” to cars belonging to potential customers. We see nothing in our cases which requires in a conversion case that the plaintiff prove that the defendant

appropriated the property to his own use; rather, as noted in the cases referred to above, it is enough that he show that the defendant exercised dominion over it in exclusion or defiance of the right of the plaintiff. We think that has been done here. The jury so found and we cannot concur that a case for conversion has not been made on these facts. Further, appellants argue that there was no conversion since the plaintiff could have

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called his wife at home, who had another set of keys and thereby gained the ability to move his automobile. We find nothing in our cases which would require the plaintiff to exhaust all possible means of gaining possession of a chattel which is withheld from him by the defendant, after demanding its return. On the contrary, it is the refusal, without legal excuse, to deliver a chattel, which constitutes a conversion. . . . We find unconvincing the appellants contention that if there were a conversion at all, it was the conversion of the automobile keys, and not of the automobile. In Compton v. Sims, [209 Ala. 287, 96. 185], this court sustained a finding that there had been a conversion of cotton where the defendant refused to deliver to the plaintiff “warehouse tickets” which would have enabled him to gain possession of the cotton. The court spoke of the warehouse tickets as a symbol of the cotton and found that the retention of them amounted to a conversion of the cotton. So here, we think that the withholding from the plaintiff after demand of the keys to his automobile, without which he could not move it, amounted to a conversion of the automobile. . . . Affirmed.

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Restatement (Second) of Torts § 222A. What Constitutes Conversion (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: (a) the extent and duration of the actor's exercise of dominion or control; (b) the actor's intent to assert a right in fact inconsistent with the other's right of control; (c) the actor's good faith; (d) the extent and duration of the resulting interference with the other's right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other.

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SOUTHERN COUNTIES ICE CO. v. RKO United States District Court of Appeals 39 F. Supp. 157 (D.C.S.D. Cal. 1941) JAMES ALGER FEE, District Judge. This action was brought to recover for the loss of a building by fire. . . . The cause was tried before the court without a jury. The facts upon which the parties are in agreement will be stated first. Southern Counties Ice Company is a California corporation which jointly with certain individuals was the assignee of a lease made by the Southern Pacific Company to certain lands from month to month and the owners of a vegetable packing house with equipment which was upon the leased premises. Upon thirty days' notice the owners would be required to move the building under the lease. The owners have assigned all rights to plaintiff. RKO Radio Pictures, Inc., is a Delaware corporation. The employees of defendant entered the premises above described and began the erection of a set upon the platform of the packing house. They left at about five o'clock in the afternoon and between seven thirty and eight o'clock at night the packing house was destroyed by fire. Further facts are found in the evidence. The employees of defendant had permission to erect a set in the vicinity but mistook the location and entered and used the packing house. Some employees were smoking while working there. Upon departing some clothing and certain tools were left by these employees in the packing house or on the platform thereof. The defendant, contrary to a well established custom, placed no guard when the employees left. The fire was observed about the time an explosion was heard in the end of the building furthest from the place where defendant's employees had been working, but the flooring was burned through near the door next the set, and there only. The defendant's set was not burned owing to the exertions of the fire department and defendant's employees. Thereafter defendant finished the set and occupied the premises for several days. Defendant introduced testimony of its employees to the effect that the packing house doors were open, that there were signs that fires had at sometime been built therein on a sheet iron and that some pans which might be used in cooking were hung in a recess on the platform. There was no evidence to show how recent any use of the premises had been nor was any person seen thereon except the employees of defendant. . . .

The land was under lease to plaintiff. The building thereon may be treated as real property, or by the subsequently developed fiction of constructive severance, as personal property. (a) If these acts be viewed as a trespass to realty then there was dissension under the common law ideas. The recovery of the land and damages for change of condition makes plaintiffs whole. (b) If the building be viewed as a chattel, the dominion exercised by employees

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of defendant was a conversion. If the articles could be returned undamaged, plaintiffs might not suffer injury. But plaintiffs could not be required to accept a chattel which was damaged after defendant had converted it to its own use. The limits of liability are thus scientifically stated. The use of the language of 'causation' or 'consequence' is inaccurate if this theory be used. . . . The court finds that defendant entered upon and exercised complete dominion over the leased land and the packing house and continued in possession thereof for several days. This occupancy was without the knowledge or consent of the owners and lessees. The defendant was in good faith and mistook the location of the land. The fire resulted directly from the entry and exercise of dominion by defendant. No other intervening cause was shown by the evidence. . . . Where one exercises complete dominion over the land or personal property of another, however unwittingly, and during the period of his use thereof a loss or damage occurs, he should be held to act, because of the invasion, at his peril and to be responsible for any loss or damage, even though due to an irresistible or extraordinary force, and even though the event was entirely unexpected. The person so assuming dominion has, for the time at least, taken the place of the owner who normally bears the loss of unexpected happenings. In decisions which have considered loss by fire where one without right entered the premises of another, it seems to have been universally held that the exercise of care did not affect liability. The language of causation is used but the result of the unlawful use may have been entirely unexpected and unanticipated since no direct proof of the relation of the fire lighted by a trespasser to that which caused the loss, is required. . . . In the assessment of damages the court has weighed the cost of replacement of the structure, the deterioration and the rental value of the premises during occupancy together with cost of removal. There was no proof of the value of the equipment. The damages allowed, are in the sum of $2,150. Findings and judgment may be submitted.

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WALLACE v. SHOREHAM HOTEL CORP. D.C. Municipal Court of Appeals 49 A.2d 81(1946) HOOD, Associate Judge. This appeal is from an order dismissing a complaint for failure to state a cause of action. The substance of the complaint is that plaintiff, in company with his wife and four friends, was a guest at the cocktail lounge of defendant's hotel; that, in payment of the check rendered, plaintiff gave the waiter a $20 bill but received change for only $10; that the waiter insisted he had received from plaintiff a $10 bill and stated publicly for all in the lounge to hear: “We have had people try this before”; that in fact plaintiff had tendered a $20 bill, which fact was later admitted by representatives of the hotel and proper change given plaintiff; that the language of the waiter indicated to those present in the lounge that plaintiff was underhanded and of low character and that his demand for change was illegal and comparable to that of a cheat or other person whose reputation for honesty is open to question; that by reason thereof plaintiff was “insulted, humiliated and otherwise embarrassed.” The plaintiff sought judgment 'for exemplary or punitive damages' of $3,000. . . . We have found no rule of law imposing on the keeper of a drinking establishment, whether called cocktail lounge, bar, saloon or some other name, a higher degree of civility toward its patrons than is imposed on the operator of a store, a barber shop, a filling station or any other mercantile activity. This dispute over the proper change could have arisen just as easily in any place where one pays for goods or services. Our question, therefore, is whether the customer of a business establishment has a cause of action for humiliation and embarrassment resulting from insulting words or conduct of an employee of the establishment. . . . The question of the right to recover for humiliation and embarrassment, i. e., mental distress, unaccompanied by physical suffering, resulting from insulting language, unaccompanied by physical force or threats, has been the subject of discussion in a number of legal publications. [The court reviews several articles arguing in favor of finding a cause of action, but note

that they each] would rest liability on the degree of the insult and the extent of the suffering caused. Ordinarily the gravity of a defendant's conduct and the amount of injury caused are factors in arriving at the amount of recovery, and are not determinative of the right to recover. Under the rule proposed, however, it would be necessary to hold that not only the extent of recovery, but the existence of the cause of action is dependent on the amount of damage sustained. If one has a cause of action for an insult only when that insult exceeds the trivial and

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goes beyond all bounds of decency, and only when such insult produces suffering of a genuine, serious and acute nature, then there must be some rules or standards by which a jury before reaching the realm of amount of recovery may first determine the right of recovery. The jury would have to have some instructions to guide them in determining the bounds of decency and some test to apply in distinguishing between trivial and serious. We know of no workable rule and the authorities furnish us none. In determining the right of recovery would the bounds of decency and the seriousness of the insult be the same in the cocktail room of “an internationally known hostel” as plaintiff asserts the defendant's hotel to be, and a “beer joint” in an unsavory section of the city? Will the seriousness of the insult, and therefore the existence of the cause of action, depend on the social or business standing of either the one giving or receiving the insult? Will the acuteness of plaintiff's suffering, and therefore defendant's liability, depend on the sensitivity of the particular individual? Are all these matters to be left to the “common sense” of the jury, with no rules for their guidance? Professor Bohlen, in his article entitled “Fifty Years of Torts,” 50 Harvard Law Review 725 (1937), while sympathetic toward an extension of liability for mental and emotional disturbance, points out the difficulty of formulating any rule of general application. Unless liability may be made to rest in individual cases, “upon the enormity of the defendant's conduct,” he says “it would be difficult to frame a rule which would allow recovery in such case and not put the ordinary man in the position of answering in damages whenever he had not shown what a sympathetic jury might regard as sufficient consideration of the feelings of his neighbor.”. . . . . . “It is safe to predict that whatever relief is to be granted for mental distress will be confined to cases in which the defendants intended to cause it and where the distress is of a sort which the ordinary man regards as very serious.”. . . There are many cases, not subject to classification, touching on the point here in issue. . . . We have found no case which goes so far as to sustain plaintiff's complaint. One case in our own jurisdiction, Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62, 66. . . sustained a complaint which charged that the Association by a series of collection letters inflicted upon the plaintiff injuries both mental and physical, for the purpose of collecting a debt. . . . Although the Clark case is distinguishable from the present one, yet there is a statement in the opinion which we think is applicable here. In its preliminary discussion of the law relating to liability for mental distress, unaccompanied by physical injury, the court said:

“The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. For the sake of reasonable freedom of action, in our own interest and that of society, we need the privilege of being careless whether we inflict mental distress on our neighbors. It is perhaps less clear that we need the privilege of distressing them intentionally and without excuse. Yet there is, and probably should be, no general principle that mental distress

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purposely caused is actionable unless justified. Such a principle would raise awkward questions of de minimis and of excuse. ‘He intentionally hurt my feelings' does not yet sound in tort, though it may in a more civilized time.” . . . Affirmed.

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BENEDICT v. EPPLEY HOTEL CO. Supreme Court of Nebraska. 65 N.W.2d 224 (1954) BOSLAUGH, Justice. This is an action for damages claimed to have been sustained by appellee because of injuries inflicted upon her as a result of negligence of appellant. Appellee had a verdict and judgment. A motion of appellant for a directed verdict at the close of all the evidence was denied. A motion for judgment notwithstanding the verdict and a motion for a new trial were overruled. Appellee pleaded as a cause of action that: Appellant, a corporation, maintains and operates hotels in Omaha. One of them is the Rome Hotel. Appellant on or about March 5, 1949, operated a bingo game as a part of its activities and as an attraction to induce persons of the city and surrounding territory to the Rome Hotel. The facilities for the game, including the place where it was conducted, the tables, and the chairs, were provided by appellant. The appellee at the invitation of appellant attended the game, procured from an attendant in charge a chair, and occupied it at one of the bingo tables. She sat on the chair for a short time when it collapsed and hurled her to the floor with force and violence, and she sustained numerous and severe permanent injuries. The chair was defective in a respect unknown to appellee. The defect therein caused it to collapse and injure her. It was a folding chair constructed so that when it was not in use the seat could be folded up against the front of the back of the chair. If it was not defective or out of repair it could not and would not collapse or cause injury to a person sitting on it. The appellee invoked the doctrine of res ipsa loquitur. The defenses interposed by appellant were a denial and a plea of contributory negligence of appellee. The Military Order of the Cooties, a branch of the Veterans of Foreign Wars, as one of its activities to raise money, had an arrangement with the Rome Hotel to put on a bingo game therein. The ballroom was usually used but on occasions more than one room was required. An amount was paid to appellant each time the accommodations were used for this purpose. Appellant had supervision of the space used for the game. It furnished the accommodations where the game was played, the tables, the chairs, and all other facilities, but the supplies required in the conduct of the game were not furnished by it. The employees of the hotel set up the tables and arranged the chairs for use of the participants and after the game they dismantled the tables and removed the chairs. A Mr. Pennington and his helpers, acting for the Military Order of the Cooties, directed the playing of the game. Appellant had a bar adjoining the bingo

room or rooms and its employees served beer, mixed drinks, and other beverages as they were desired by persons attending the game. The hotel had a lunch stand and made available to anyone present coffee and sandwiches. These concession rights were reserved exclusively to appellant and it served the public for profit. The game was scheduled to start at 8 p. m. The mother of appellee, accompanied by a

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friend, was at the hotel when the game started the evening of March 5, 1949. Appellee arrived there about 9:30 p. m. She paid the charge required to become one of the players, secured a chair from an attendant, took it some distance to one of the bingo tables, and placed it at the table opposite where her mother was seated, sat on the chair, and entered the game. She continued to occupy the chair for about 20 or 30 minutes when, without warning, it collapsed and caused her to suddenly descend onto the floor. She observed nothing unusual about the chair when it was furnished to her or while she was taking it to the table and experienced nothing unusual while she was occupying it before it gave way. She used it for no purpose except to sit on it. It was a folding chair with braces, screws, and bolts to maintain it in proper condition for its intended use. After the accident it was discovered the screws and bolts on one side of the chair were missing from it. It was the duty of the lobby porter of the hotel to inspect its chairs for defects. He did not testify and there is no proof that he performed this duty. A porter assigned to the housekeeping department was a witness for appellant. He said he sometimes helped other porters set up tables and arrange chairs for banquets and parties. He examined each chair he handled for any defects in it and if he found any he took the defective chair to the carpenter shop of the hotel. He gave no date when he made an inspection of chairs, did not claim that he handled any of the chairs provided and arranged for the bingo game the night appellee was injured, or that he had seen the chair she used that was not in normal condition that night. The other porters who handled the chairs were not produced at the trial. The Military Order of the Cooties had nothing to do with the maintenance, inspection, or repair of the chairs made available by the hotel for the use of persons attending the bingo game. The chair sometime after it had collapsed was taken and delivered by Mr. Pennington to the man who was in charge of the Rome Hotel that night. It was not produced at the trial and no evidence concerning this specific chair or its condition was offered by appellant at the trial. It is correctly asserted by appellant that an innkeeper is not an insurer against accident and injury to invited persons upon the premises, but he must exercise reasonable care to keep the premises and facilities of the inn reasonably safe for the purposes for which they are to be used by guests and other invitees. Liability arises from failure to exercise reasonable care and prudence in that regard. . . . Appellee did not allege or attempt to prove specific negligence. She says a chair does not ordinarily collapse when it is sat on by a person if the one responsible for its maintenance and who has its management uses reasonable care to keep it reasonably safe for the purpose of its intended use. She relies upon res ipsa loquitur. This doctrine of the law is that if a thing which

causes injury is shown to be under the control and management of a defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from want of proper care. That is, the thing shown speaks of the negligence of the defendant. The facts of the occurrence permit, but do not compel, an inference of negligence. . . .

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Appellant attempts to avoid the application of the doctrine of res ipsa loquitur to this case by asserting the defect in the chair concerned in the accident was latent and could not have been discovered by reasonable care. It was a folding chair equipped with metal braces fastened to it with screws or bolts so that it could be operated and when not folded up could be safely used as a chair. There is no proof that the braces or fasteners were not exposed to view. It is a reasonable inference that they were and that a casual examination before or at the time the chair was given to appellee to be used by her would have disclosed the defect in the chair because the screws and bolts on one side of the chair were missing and this was learned after it collapsed by merely looking at it. A latent defect in an article of this nature is one that exists in such a way that discovery is impossible by the exercise of reasonable inspection and care. . . . The defect in the chair was not latent. . . . . The applicability of the doctrine of res ipsa loquitur to this case is denied by appellant because it asserts that its chair occupied by appellee at the time of the accident was in her exclusive possession and control from the time she got it from a person who had been using it, moved it up to the table, and sat on it, a period of about 30 minutes. Her acts in reference to the chair were limited to transportation of it from where she first saw it in the hallway connecting the Embassy Room and the ballroom of the Rome Hotel to the table in the latter room where the game was in progress and sitting on it. She occupied the chair as an invitee of appellant. She had no right or duty to examine it for defects. She had a right to assume it was a safe instrumentality for the use she had been invited by appellant to make of it. Appellant had the ownership, possession, and control of the chair under the circumstances of this case and it was obligated to maintain it in a reasonably safe condition for the invited use made of it by the appellee. The fact that the chair when it was being properly used for the purpose for which it was made available gave way permits an inference that it was defective and unsafe and that appellant had not used due care in reference to it. . . . . Instructions given the jury are challenged. . . . The first instruction objected to says if the evidence offered by appellant “fails to rebut the presumption” and if “the presumption is rebutted.'” There was no previous mention of presumption. The word inference had been used by the court. It was proper if not necessary for

the jury to understand that inference and presumption were different things, because of the language “fails to rebut the presumption or destroy the inference.” The jury was wholly unaided concerning the meaning of the words “the presumption'”as employed by the trial court. The advice to the jury that if the evidence of the defendant “fails to rebut the presumption or destroy the inference, then your verdict will be in favor of the plaintiff” permitted it to understand that appellant was obliged to explain how the accident happened and to overcome by evidence any

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inference of negligence that arose because of the collapse of the chair. Appellant was not required to explain the cause of the accident or to overcome any inference of negligence. It was privileged but not required when appellee rested her case to go forward with any proof that was available that it had used due care to furnish a safe chair. If appellant submitted no proof it remained a question for the jury to decide whether appellee had shown circumstances sufficient to justify finding negligence on the part of appellant that was the proximate cause of the accident and injury. . . . . The judgment of the district court should be and it is reversed and the cause is remanded. Reversed and Remanded.

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Status of Entrant Duties Owed

Artificial Conditions

Natural Conditions

Active Operations

Undiscovered Trespasser

No duty No duty No duty

Discovered or Anticipated Trespasser

Duty to warn of or make safe if nonobvious and highly dangerous

No duty Duty of reasonable care

Infant Trespasser (if presence on land foreseeable)

Duty to warn of or make safe if foreseeable risk outweighs expense of eliminating danger

No duty No duty (unless child also qualifies as discovered or anticipated trespasser)

Licensee (including social guests)

Duty to warn of or make safe if nonobvious and dangerous

Duty to warn of or make safe if nonobvious and dangerous

Duty of reasonable care

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Invitee (e.g., member of public, business visitor)

Duty to make reasonable inspections to discover non-obvious dangerous conditions and warn of or make them safe

Duty to make reasonable inspections to discover non-obvious dangerous conditions and warn of or make them safe

Duty of reasonable care

Ch. 7 STRICT LIABILITY 515

PROSSER & KEETON ON TORTS

(5th ed. 1984) pp.534-537

STRICT LIABILITY FOR PHYSICAL HARM TO PERSONS AND TANGIBLE THINGS FROM

ACCIDENTAL INVASION

§ 75. Basis of Liability

"Strict liability," as that term is used in this chapter, and as that term is commonly used by modem courts, means liability that is imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care, i.e., actionable negligence. This is often referred to as liability without fault. That reference can be misleading, since much of the liability imposed for intentionally negligently interfering with legally protected interests is liability without moral fault.

As we have seen, the early law of torts was not concerned

primarily with the moral responsibility, or "fault" of the wrongdoer. It occupied itself chiefly with beeping the peace between individuals, by providing a remedy which would be accepted in lieu of private vengeance. While it is probable that even from the beginning the idea of moral guilt never was entirely absent from the minds of the judges, it was not the most important consideration. Originally the person who hurt another by pure accident, or in selfdefense, was required to make good the damage inflicted. "In all civil acts," it was said, "the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering.' There was, in other words, a rule, undoubtedly supported by the general feeling in the community,, that 'he who breaks must pay. "

Until about the close of the nineteenth century, the history of the

law of torts was that of a slow, and somewhat unsteady, progress toward the recognition of "fault" or moral responsibility as the basis of the remedy. With a growing moral consciousness in the community, there was a general movement in the direction of identifying legal liability with conduct which would not be expected of a good citizen. This tendency was so marked that efforts were made by noted writers to construct a consistent theory of tort law upon the basic principle that there should be no liability without fault.

But "fault," in this sense, never has become quite synonymous

with moral blame. Not only is a great deal of morally reprehensible conduct vested with complete legal immunity -- as where the expert swimmer who sees another drowning before his eyes is permitted to stand on the dock and watch him drown -- but at the same time the law finds "fault" in much that

516 UNINTENTIONAL INJURY Part II is morally innocent. "Fault" is a failure to live up to an ideal of conduct to which no one conforms always and which may be beyond the capacity of the individual. It may consist of sheer ignorance, lack of intelligence, or an honest mistake. It may consist even in acts which are the normal and usual thing in the community. Even the infant and the lunatic who cannot help what they do are held liable for their torts.

So much can be collected in the way of cases imposing liability without any vestige of moral blame that a number of writers have maintained that negligence is rapidly losing, if it has not entirely lost, its character as a branch of "fault" liability, so that those who are entirely innocent are now required to pay for the damage they do, and that negligence should therefore largely be jettisoned. This perhaps begs the question, by assigning to "fault" a criminal law connotation of moral blame which it -seldom has been given in the law of torts. There is a broader sense in which 'fault' means nothing more than a departure from a standard of conduct required of a person by society for the protection of his neighbors; and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong. The distinction still remains between the person who has deviated from the standard, and the person who has not. The defendant may not be to blame for being out of line with what society requires of him, but he is none the less out of line.

In this broader sense there is "fault" in much innocent conduct. Tort

liability never has been inconsistent with the ignorance which is bliss, or the good intentions with which bell is said to be paved. A trespasser is not excused by the honest, reasonable belief that the land is his own; a bona fide purchaser of stolen goods is held liable for conversion; the publisher of a libel commits a tort, although he has no means of knowing the defamatory nature of his words. There are many situations in which a careful person is held liable for an entirely reasonable mistake. In all this there is nothing new. Socially, and legally, these defendants are at fault; whether they are individually so, in spite of the fact that they are blameless, appears to be entirely a matter of definition, rather than substance, and the argument leads only to a pointless dispute over the meaning of a word.

Strict Liability

But even beyond all this, the last hundred years have witnessed the overthrow of the doctrine of "never any liability without fault," even in the legal sense of a departure from reasonable standards of conduct. It has seen a general acceptance of the principle that in some cases the defendant may be held liable, although he is not only charged with no moral wrongdoing, but has not even departed in any way from a reasonable standard of intent or care. In some instances, as where liability is imposed upon the keepers

of animals, new reasons of social policy have been found for the continuance of an older rule of strict liability. In others, involving abnormally dangerous conditions or activities, the courts have in effect recognized a new doctrine, that the defendant's enterprise, while it will be tolerated by the law, must pay its way. There is "a strong and growing tendency, where there is blame on neither side, to ask, in view of the exigencies of social justice, who can best bear the loss and hence to shift the loss by creating liability where there has been no fault."

An entire field of legislation, illustrated by the workers' compensation acts, has been based upon the same principle.

This new policy frequently has found expression where the defendant's activity is unusual and abnormal in the community, and the danger which it threatens to others is unduly great-and particularly where the danger will be great even though the enterprise is conducted with every possible precaution. The basis of liability is the defendant's intentional behavior in exposing those in his vicinity to such a risk. The conduct which is dealt with here occupies something of a middle ground. It is conduct which does not so far depart from social standards as to fall within the traditional boundaries of negligence--usually because the advantages which it offers to the defendant and to the community outweigh even the abnormal risk; but which is still so far socially unreasonable that the defendant is not allowed to carry it on without making good any actual harm which it does to his neighbors.

The courts have tended to lay stress upon the fact that the defendant is acting for his own purposes, and is stress upon a benefit or a profit from such activities, and that he is in a better position to administer the unusual risk by passing it on to the public than is the innocent victim. The problem is dealt with as one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, aid liability is imposed upon the party best able to shoulder it. The defendant is held liable merely because, as a matter of social adjustment, the conclusion is that the responsibility should be so placed. This modern attitude, which is largely a thing of the last four decades, is of course a far cry from the individualistic viewpoint of the common law courts.

While such strict liability often is said to be imposed "without fault," it can scarcely be said that there is less of a moral point of view involved in the rule that one who innocently causes harm should make it good. The traditional analysis regards such a result as something of an exception to more or less well established rules, and says that the defendant is not at "fault" because he has only done a reasonable thing in a reasonable way, and that he is liable notwithstanding. But it my be questioned whether "fault,"

Ch. 7 STRICT LIABILITY 517

518 UNINTENTIONAL INJURY Part II

with its popular connotation of personal guilt and moral blame, and its more or less arbitrary legal meaning, which will vary with the requirements of social conduct imposed by the law, is of any real assistance in dealing with such questions, except perhaps as a descriptive term.

MADSEN v. EAST JORDAN IRR. CO. Supreme Court of Utah. 101 Utah 552, 125 P.2d 794 (1942). [Action by Edgar R. Madsen against the East Jordan Irrigation Company to recover for the death of minks being raised on plaintiff's mink farm, allegedly as result of blasting operations of defendant. From a judgment sustaining a general demurrer to plaintiff's amended complaint, and entering judgment for defendant, the plaintiff appeals.] PRATT, Justice. * * * The facts, as alleged in the amended complaint, are as follows: Appellant owns the Madsen Mink Farm in Sandy, Utah, using said farm to breed and raise mink for sale. The farm is located 100 yards north of respondent's irrigation canal and, on May 5, 1941, respondent, in repairing its canal, blasted with explosives, causing vibrations and noises which frightened the mother mink and caused 108 of them to kill 230 of their "kittens" (offspring). The appellant further alleges that, by nature, habit and disposition all mink, when with and attending their young, are highly excitable and, when disturbed, will become terrified and kill their young. Appellant places a value of $25 each on said "kittens" and seeks to recover $5,750 as damages. * * * Respondent, in his brief, contends that, because the injury in the present case was consequential rather than immediate, the amended complaint does not state facts sufficient to constitute a cause of action in trespass. He further contends that the amended complaint did not state facts sufficient to constitute a cause of action in case. It is conceded that the rule of absolute liability prevails when one uses explosives and the blasting of said explosives results in hurling of rock, earth or debris which causes injury to another.... The weight of authority sustains the position that there is no distinction in liability for damage in nonconcussion and concussion cases.... ....There is no practical difference between liability occasioned by blasting which projects rocks on another's property or by creating a sudden vacuum and resultant

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concussion. Had the concussion in the instant case killed the kittens directly, without the intervention of the mother minks, the majority rule of liability in concussion cases would have been applicable, but the case at bar presents the additional element of the mother minks' independent acts, thereby raising a question of proximate causation. Query: Did the mother minks' intervention break the chain of causation and therefore require an allegation of negligence? Many years ago (1896) a Maine court held that the intervening act of an animal broke the chain of causation to such extent that blasting could not be considered the proximate cause of injury and negligence on the part of the blaster had to be proved. Wadsworth v. Marshall, 88 Me. 263, 34 A. 30, 32 L.R.A. 588. In the Wadsworth case, the plaintiff was riding along a public highway near which defendant was operating a quarry. He exploded a blast which frightened plaintiff's horse and she (plaintiff) was injured. There was a Maine statute requiring persons engaged in blasting to give reasonable notice of their intention to blast to all persons in the vicinity of the blast. The trial court excluded testimony as to the viciousness and nervousness of plaintiff's horse, proceeding upon the ground that defendant violated the statute by failing to give the required notice and therefore he was liable regardless of the character of the horse or any negligence of the plaintiff. The appellate court reversed the lower court's decision, holding that it would be a harsh construction of the statute to hold that the negligence of the quarryman in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding an unsuitable horse. The court ruled that "the established doctrine of contributory negligence, as a defense, applies to this class of actions." While the above ruling interjects an element--contributory negligence--which is absent in the present case, it impresses one with the thought that he who fires explosives is not liable for every occurrence following the explosion which has a semblance of connection to it. Jake's horse might become so excited that he would run next door and kick a few ribs out of Cy's jersey cow, but is such a thing to be anticipated from an explosion? Whether the cases are concussion or nonconcussion, the results chargeable to the non-negligent user of explosives are those things ordinarily resulting from an explosion. Shock, air vibrations, thrown missiles are all illustrative of the anticipated results of explosives; they are physical as distinguished from mental in character. The famous Squib case does not mitigate what has been said in the preceding lines. That was a case where the mental reaction was to be anticipated as an instinctive matter of self-preservation. In the instant case, the killing of their kittens was not an act of self-preservation on the part of the mother mink but a peculiarity of disposition which was

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not within the realm of matters to be anticipated. Had a squib been thrown and suddenly picked up by a dog, in fun, and carried near another, it is ventured that we would not have had a famous Squib case, as such a result would not have been within the realm of anticipation. We are of the opinion that the lower court properly sustained the demurrer. Judgment affirmed. Costs to respondent. MOFFAT, C. J., LARSON and McDONOUGH, JJ., concur. [concurring opinion of WOLFE, J. omitted] * * *

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SIEGLER v. KUHLMAN Supreme Court of Washington. 81 Wash.2d 448, 502 P.2d 1181 (1973) HALE, Associate Justice. Seventeen-year-old Carol J. House died in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her after-school job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car's headlamps were burning. There was a slight impact with some object, a muffled explosion, and then searing flames from gasoline pouring out of an overturned trailer tank engulfed her car. The result of the explosion is clear, but the real causes of what happened will remain something of an eternal mystery. Aaron L. Kuhlman had been a truck driver for nearly 11 years . . . . That evening of November 22nd, he was scheduled to drive a gasoline truck and trailer unit, fully loaded with gasoline, from Tumwater to Port Angeles. Before leaving the Texaco plant, he inspected the trailer, checking the lights, hitch, air hoses and tires. Finding nothing wrong, he then set out . . . . With all vehicle and trailer running lights on, he drove the truck and trailer onto Interstate Highway 5, . . . took the offramp . . . at the Capitol Lake interchange. Running downgrade on the offramp, he felt a jerk, looked into his left-hand mirror and then his right-hand mirror to see that the trailer lights were not in place. The trailer was still moving but leaning over hard, he observed, onto its right side. The trailer then came loose. Realizing that the tank trailer had disengaged from his tank truck, he stopped the truck without skidding its tires. He got out and ran back to see that the tank trailer had crashed through a chain-link highway fence and had come to rest upside down on Capitol Lake Drive below. He heard a sound, the said, “'like somebody kicking an empty fifty-gallon drum and that is when the fire started.” The fire spread, he thought, about 100 feet down the road. . . . . When the trailer landed upside down on Capitol Lake Drive, its lights were out, and it was unilluminated when Carol House's car in one way or another ignited the spilled gasoline. Carol House was burned to death in the flames. There was no evidence of impact on the vehicle she had drive . . . except that the left front headlight was broken.

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Why the tank trailer disengaged and catapulted off the freeway down through a chain-link fence to land upside down on Capitol Lake Drive below remains a mystery. What caused it to separate from the truck towing it, despite many theories offered in explanation, is still an enigma . . . . The jury apparently found that defendants had met and overcome the charges of negligence. Defendants presented proof that both the truck . . . and the tank and trailer . . . had been constructed by experienced companies. . . . Defendants presented evidence . . . that the truck and trailer were regularly serviced and repaired . . . . There was evidence obtained at the site of the fire that both of the mainsprings above the tank trailer's front wheels had broken as a result of stress, not fatigue--from a kind of stress that could not be predicated by inspection--and finally that there was no negligence on the driver's part. . . . In the Court of Appeals, the principal claim of error was directed to the trial court's refusal to give an instruction on res ipsa loquitur, and we think that claim of error well taken. . . . Miles v. St. Regis Paper Co., 77 Wash.2d 828, 467 P.2d 307 (1970). . . . We think, therefore, that plaintiff was entitled to an instruction permitting the jury to infer negligence from the occurrence. But there exists here an even more impelling basis for liability in this case than its derivation by allowable inference of fact under the res ipsa loquitur doctrine, and that is the proposition of strict liability arising as a matter of law from all of the circumstances of the event. Strict liability is not a novel concept; it is at least as old as Fletcher v. Rylands, L.R. 1 Ex. 265, 278 (1866), affirmed, House of Lords, 3 H.L. 330 (1868). In that famous case, where water impounded in a reservoir on defendant's property escaped and damaged neighboring coal mines, the landowner who had impounded the water was held liable without proof of fault or negligence. Acknowledging a distinction between the natural and nonnatural use of land, and holding the maintenance of a reservoir to be a nonnatural use, the Court of Exchequer Chamber imposed a rule of strict liability on the landowner. The ratio decidendi included adoption of what is now called strict liability, and at page 278 announced, we think, principles which should be applied in the instant case:

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[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

All of the Justices in Fletcher v. Rylands, supra, did not draw a distinction between the natural and nonnatural use of land, but such a distinction would, we think, be irrelevant to the transportation of gasoline. The basic principles supporting the Fletcher doctrine, we think, control the transportation of gasoline as freight along the public highways the same as it does the impounding of waters and for largely the same reasons. . . . In many respects, hauling gasoline as freight is no more unusual, but more dangerous, than collecting water. When gasoline is carried as cargo--as distinguished from fuel for the carrier vehicle--it takes on uniquely hazardous characteristics, as does water impounded in large quantities. Dangerous in itself, gasoline develops even greater potential for harm when carried as freight--extraordinary dangers deriving from sheer quantity, bulk and weight, which enormously multiply its hazardous properties. And the very hazards inhering from the size of the load, its bulk or quantity and its movement along the highways presents another reason for application of the Fletcher v. Rylands, supra, rule not present in the impounding of large quantities of water--the likely destruction of cogent evidence from which negligence or want of it may be proved or disproved. It is quite probable that the most important ingredients of proof will be lost in a gasoline explosion and fire. Gasoline is always dangerous whether kept in large or small quantities because of its volatility, inflammability and explosiveness. But when several thousand gallons of it are allowed to spill across a public highway--that is, if, while in transit as freight, it is not kept impounded--the hazards to third persons are so great as to be almost beyond calculation. As a consequence of its escape from impoundment and subsequent explosion and ignition, the evidence in a very high percentage of instances will be destroyed, and the reasons for and causes contributing to its escape will quite likely be lost in the searing flames and explosions. That this is a sound case for the imposition of a rule of strict liability finds strong support in Professor Cornelius J. Peck's analysis in Negligence and Liability Without Fault in Tort Law, 46 Wash.L.Rev. 225 (1971). Pointing out that strict liability was imposed at common law prior to Fletcher v. Rylands supra, that study shows the

22

application of a rule of strict liability in a number of instances, i.e., for harm done by trespassing animals; on a bona fide purchaser of stolen goods to their true owner; on a bailee for the misdelivery of bailed property regardless of his good faith or negligence; and on innkeepers and hotels at common law. But there are other examples of strict liability: The Supreme Court of Minnesota, for example, imposed liability without fault for damage to a dock inflicted by a ship moored there during a storm. Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910). The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof:

One of these common features is that the person harmed would encounter a difficult problem of proof if some other standard of liability were applied. For example, the disasters caused by those who engage in abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred . . . . Moreover, application of such a standard of liability to activities which are not matters of common experience is well-adapted to a jury's limited ability to judge whether proper precautions were observed with such activities.

Problems of proof which might otherwise have been faced by shippers, bailors, or guests at hotels and inns certainly played a significant role in shaping the strict liabilities of carriers, bailees, and innkeepers. Problems of proof in suits against manufacturers for harm done by defective products became more severe as the composition and design of products and the techniques of manufacture became less and less matters of common experience; this was certainly a factor bringing about adoption of a strict liability standard. (Footnote omitted.)

C. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash.L.Rev. 225, 240 (1971). . . . Thus, the reasons for applying a rule of strict liability obtain in this case. We

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have a situation where a highly flammable, volatile and explosive substance is being carried at a comparatively high rate of speed, in great and dangerous quantities as cargo upon the public highways, subject to all of the hazards of high-speed traffic, multiplied by the great dangers inherent in the volatile and explosive nature of the substance, and multiplied again by the quantity and size of the load. Then we have the added dangers of ignition and explosion generated when a load of this size, that is, about 5,000 gallons of gasoline, breaks its container and, cascading from it, spreads over the highway so as to release an invisible but highly volatile and explosive vapor above it. Danger from great quantities of gasoline spilled upon the public highway is extreme and extraordinary, for any spark, flame or appreciable heat is likely to ignite it. The incandescent filaments from a broken automobile headlight, a spark from the heat of a tailpipe, a lighted cigarette in the hands of a driver or passenger, the hot coals from a smoker's pipe or cigar, and the many hot and sparking spots and units of an automobile motor from exhaust to generator could readily ignite the vapor cloud gathered above a highway from 5,000 gallons of spilled gasoline. Any automobile passing through the vapors could readily have produced the flames and explosions which killed the young woman in this case and without the provable intervening negligence of those who loaded and serviced the carrier and the driver who operated it. Even the most prudent and careful motorist, coming unexpectedly and without warning upon this gasoline pool and vapor, could have driven into it and ignited a holocaust without knowledge of the danger and without leaving a trace of what happened to set off the explosion and light the searing flames. Stored in commercial quantities, gasoline has been recognized to be a substance of such dangerous characteristics that it invites a rule of strict liability--even where the hazard is contamination to underground water supply and not its more dangerous properties such as its explosiveness and flammability. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969). It is even more appropriate, therefore, to apply this principle to the more highly hazardous act of transporting it as freight upon the freeways and public thoroughfares. Recently this court, while declining to apply strict liability in a particular case, did acknowledge the suitability of the rule in a proper case. In Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wash.2d 59, 491 P.2d 1037 (1971), we observed that strict liability had its beginning in Fletcher v. Rylands, supra, but said that it ought not be applied in a situation where a bursting water main, installed and maintained by the

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defendant Port of Seattle, damaged plaintiff telephone company's underground wires. There the court divided--not on the basic justice of a rule of strict liability in some cases-- but in its application in a particular case to what on its face was a situation of comparatively minor hazards. Both majority and dissenting justices held, however, that the strict liability principles of Fletcher v. Rylands, supra, should be given effect in some cases; but the court divided on the question of whether underground water mains there constituted such a case. The rule of strict liability, when applied to an abnormally dangerous activity, as stated in the Restatement (Second) of Torts §519 (Tent.Draft No. 10, 1964), was adopted as the rule of decision in this state in Pacific Northwest Bell Tel. Co. v. Port of Seattle . . . . . . . Contrast, however, the quiet, relatively safe, routine procedure of installing and maintaining and using underground water mains as described in Pacific Northwest Bell v. Port of Seattle, supra, with the activity of carrying gasoline as freight in quantities of thousands of gallons at freeway speeds along the public highway and even at lawful lesser speeds through cities and towns and on secondary roads in rural districts. In comparing the quiescence and passive job of maintaining underground water mains with the extremely heightened activity of carrying nearly 5,000 gallons of gasoline by truck, one cannot escape the conclusion that hauling gasoline as cargo is undeniably an abnormally dangerous activity and on its face possesses all of the factors necessary for imposition of strict liability as set forth in the Restatement (Second) of Torts §519 (Tent.Draft No. 10, 1964), above. . . . The case is therefore reversed and remanded to the trial court for trial to the jury on the sole issue of damages. HAMILTON, C.J., FINLEY, ROSELLINI, and HUNTER, JJ., and RYAN, J., pro tem., concur. ROSELLINI, Associate Justice (concurring)

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I agree with the majority that the transporting of highly volatile and flammable substances upon the public highways in commercial quantities and for commercial purposes is an activity which carries with it such a great risk of harm to defenseless users of the highway, if it is not kept contained, that the common-law principles of strict liability should apply. In my opinion, a good reason to apply these principles, which is not mentioned in the majority opinion, is that the commercial transporter can spread the loss among his customers--who benefit from this extrahazardous use of the highways. Also, if the defect which caused the substance to escape was one of manufacture, the owner is in the best position to hold the manufacturer to account. I think the opinion should make clear, however, that the owner of the vehicle will be held strictly liable only for damages caused when the flammable or explosive substance is allowed to escape without the apparent intervention of any outside force beyond the control of the manufacturer, the owner, or the operator of the vehicle hauling it. I do not think the majority means to suggest that if another vehicle, negligently driven, collided with the truck in question, the truck owner would be held liable for the damage. But where, as here, there was no outside force which caused the trailer to become detached from the truck, the rule of strict liability should apply. . . . HAMILTON, C.J., FINLEY, J., and RYAN, J., pro tem., concur.

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EAST RIVER STEAMSHIP CORP. v. TRANSAMERICA DELAVAL, INC. United States Supreme Court 476 U.S. 858 (1986) Justice BLACKMUN delivered the opinion of the Court. In this admiralty case, we must decide whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss. The case requires us to consider preliminarily whether admiralty law, which already recognizes a general theory of liability for negligence, also incorporates principles of products liability, including strict liability. Then, charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts. I In 1969, Seatrain Shipbuilding Corp. (Shipbuilding), a wholly owned subsidiary of Seatrain Lines, Inc. (Seatrain), announced it would build the four oil- transporting supertankers in issue--the T.T. Stuyvesant, T.T. Williamsburgh, T.T. Brooklyn, and T.T. Bay Ridge. Each tanker was constructed pursuant to a contract in which a separate wholly owned subsidiary of Seatrain engaged Shipbuilding. Shipbuilding in turn contracted with respondent, now known as Transamerica Delaval Inc. (Delaval), to design, manufacture, and supervise the installation of turbines (costing $1.4 million each, see App. 163) that would be the main propulsion units for the 225,000-ton, $125 million, ibid., supertankers. When each ship was completed, its title was transferred from the contracting subsidiary to a trust company (as trustee for an owner), which in turn chartered the ship to one of the petitioners, also subsidiaries of Seatrain. Queensway Tankers, Inc., chartered the Stuyvesant; Kingsway Tankers, Inc., chartered the Williamsburgh; East River Steamship Corp. chartered the Brooklyn; and Richmond Tankers, Inc., chartered the Bay Ridge. Each petitioner operated under a bareboat charter, by which it took full control of the ship for 20 or 22 years as though it owned it, with the obligation afterwards to return the ship to the real owner. See G. Gilmore & C. Black, Admiralty ss 4-1, 4-22 (2d ed. 1975). Each charterer assumed responsibility for the cost of any repairs to the ships. Tr. of Oral Arg. 11, 16-17, 35. The Stuyvesant sailed on its maiden voyage in late July 1977. On December 11

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of that year, as the ship was about to enter the Port of Valdez, Alaska, steam began to escape from the casing of the high-pressure turbine. That problem was temporarily resolved by repairs, but before long, while the ship was encountering a severe storm in the Gulf of Alaska, the high-pressure turbine malfunctioned. The ship, though lacking its normal power, was able to continue on its journey to Panama and then San Francisco. In January 1978, an examination of the high-pressure turbine revealed that the first-stage steam reversing ring virtually had disintegrated and had caused additional damage to other parts of the turbine. The damaged part was replaced with a part from the Bay Ridge, which was then under construction. In April 1978, the ship again was repaired, this time with a part from the Brooklyn. Finally, in August, the ship was permanently and satisfactorily repaired with a ring newly designed and manufactured by Delaval. The Brooklyn and the Williamsburgh were put into service in late 1973 and late 1974, respectively. In 1978, as a result of the Stuyvesant's problems, they were inspected while in port. Those inspections revealed similar turbine damage. Temporary repairs were made, and newly designed parts were installed as permanent repairs that summer. When the Bay Ridge was completed in early 1979, it contained the newly designed parts and thus never experienced the high-pressure turbine problems that plagued the other three ships. Nonetheless, the complaint appears to claim damages as a result of deterioration of the Bay Ridge's ring that was installed in the Stuyvesant while the Bay Ridge was under construction. In addition, the Bay Ridge experienced a unique problem. In 1980, when the ship was on its maiden voyage, the engine began to vibrate with a frequency that increased even after speed was reduced. It turned out that the astern guardian valve, located between the high-pressure and low-pressure turbines, had been installed backwards. Because of that error, steam entered the low-pressure turbine and damaged it. After repairs, the Bay Ridge resumed its travels. II The charterers' second amended complaint, filed in the United States District Court for the District of New Jersey, invokes admiralty jurisdiction. It contains five counts alleging tortious conduct on the part of respondent Delaval and seeks an aggregate of more than $8 million in damages for the cost of repairing the ships and for income lost while the ships were out of service. The first four counts, read liberally, allege that Delaval is strictly liable for the design defects in the high-pressure turbines of the Stuyvesant, the Williamsburgh, the Brooklyn, and the Bay Ridge, respectively. The fifth

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count alleges that Delaval, as part of the manufacturing process, negligently supervised the installation of the astern guardian valve on the Bay Ridge. . . . The District Court granted summary judgment for Delaval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. . . . The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product's quality, on the other hand, are protected by warranty law. . . . The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines' component parts, and the only risk created was that the turbines would operate at a lower capacity. . . . Therefore, neither the negligence claim nor the strict-liability claim was cognizable. . . . We granted certiorari to resolve a conflict among the Courts of Appeals sitting in admiralty. . . . III . . . With admiralty jurisdiction comes the application of substantive admiralty law. . . . Drawn from state2 and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules. . . . IV Products liability grew out of a public policy judgment that people need more protection from dangerous products than is afforded by the law of warranty. . . . It is clear, however, that if this development were allowed to progress too far, contract law would drown in a sea of tort. See G. Gilmore, The Death of Contract 87-94 (1974). We must determine whether a commercial product injuring itself is the kind of harm against which public policy requires manufacturers to protect, independent of any contractual obligation.

2. . .

We join the Courts of Appeals in recognizing products liability, including strict liability, as part of the general maritime law. . . .

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A The paradigmatic products-liability action is one where a product "reasonably certain to place life and limb in peril," distributed without reinspection, causes bodily injury. See, e.g., MacPherson v. Buick Motor Co.. . . The manufacturer is liable whether or not it is negligent because "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market." Escola v. Coca Cola Bottling Co. of Fresno [concurring opinion]. For similar reasons of safety, the manufacturer's duty of care was broadened to include protection against property damage. . . . Such damage is considered so akin to personal injury that the two are treated alike. . . . In the traditional "property damage" cases, the defective product damages other property. In this case, there was no damage to "other" property. Rather, [plaintiff’s] allege that each supertanker's defectively designed turbine components damaged only the turbine itself. Since each turbine was supplied by Delaval as an integrated package, . . . each is properly regarded as a single unit. "Since all but the very simplest of machines have component parts, [a contrary] holding would require a finding of 'property damage' in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability." Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981). The fifth count also alleges injury to the product itself. Before the high-pressure and low- pressure turbines could become an operational propulsion system, they were connected to piping and valves under the supervision of Delaval personnel. . . . Delaval's supervisory obligations were part of its manufacturing agreement. The fifth count thus can best be read to allege that Delaval's negligent manufacture of the propulsion system. . . . Obviously, damage to a product itself has certain attributes of a products-liability claim. But the injury suffered--the failure of the product to function properly--is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain. B The intriguing question whether injury to a product itself may be brought in tort

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has spawned a variety of answers.3 At one end of the spectrum, the case that created the majority land-based approach, Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965) (defective truck), held that preserving a proper role for the law of warranty precludes imposing tort liability if a defective product causes purely monetary harm. . . . At the other end of the spectrum is the minority land-based approach, whose progenitor, Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 66-67, 207 A.2d 305, 312-313 (1965) (marred carpeting), held that a manufacturer's duty to make nondefective products encompassed injury to the product itself, whether or not the defect created an unreasonable risk of harm.4 . . . The courts adopting this approach, including the majority of the Courts of Appeals sitting in admiralty that have considered the issue, . . . find that the safety and insurance rationales behind strict liability apply equally where the losses are purely economic. These courts reject the Seely approach because they find it arbitrary that economic losses are recoverable if a plaintiff suffers bodily injury or property damage, but not if a product injures itself. They also find no inherent difference between economic loss and personal injury or property damage, because all are proximately caused by the defendant's conduct. Further, they believe recovery for economic loss would not lead to unlimited liability because they think a manufacturer can predict and insure against product failure. . . . Between the two poles fall a number of cases that would permit a products- liability action under certain circumstances when a product injures only itself. These cases attempt to differentiate between "the disappointed users ... and the endangered ones," Russell v. Ford Motor Co., 281 Or. 587, 595, 575 P.2d 1383, 1387 (1978), and permit only the latter to sue in tort. The determination has been said to turn on the nature

3The question is not answered by the Restatement (Second) of Torts §§ 395 and

402A (1965), or by the Uniform Commercial Code . . . . Congress, which has considered adopting national products-liability legislation, also has been wrestling with the question whether economic loss should be recoverable under a products-liability theory. . . .

4 Interestingly, the New Jersey and California Supreme Courts have each taken what appears to be a step in the direction of the other since Santor and Seely. In Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J., at 579, 489 A.2d, at 672, the New Jersey court rejected Santor in the commercial context. And in J'Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (1979), the California court recognized a cause of action for negligent interference with prospective economic advantage.

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of the defect, the type of risk, and the manner in which the injury arose. . . . We find the intermediate and minority land-based positions unsatisfactory. The intermediate positions, which essentially turn on the degree of risk, are too indeterminate to enable manufacturers easily to structure their business behavior. Nor do we find persuasive a distinction that rests on the manner in which the product is injured. We realize that the damage may be qualitative, occurring through gradual deterioration or internal breakage. Or it may be calamitous. . . . But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain--traditionally the core concern of contract law. . . . We also decline to adopt the minority land-based view espoused by Santor and Emerson. Such cases raise legitimate questions about the theories behind restricting products liability, but we believe that the countervailing arguments are more powerful. The minority view fails to account for the need to keep products liability and contract law in separate spheres and to maintain a realistic limitation on damages. C Exercising traditional discretion in admiralty, . . . we adopt an approach similar to Seely and hold that a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.5 "The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the 'luck' of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products." Seely v. White Motor Co., 63 Cal.2d, at 18, 45 Cal.Rptr., at 23, 403 P.2d, at 151. When a product injures only itself the reasons for imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong.

5We do not reach the issue whether a tort cause of action can ever be stated in

admiralty when the only damages sought are economic. . . .

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The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the "cost of an injury and the loss of time or health may be an overwhelming misfortune," and one the person is not prepared to meet. Escola v. Coca Cola Bottling Co. [concurring opinion]. In contrast, when a product injures itself, the commercial user stands to lose the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or, as in this case, experiences increased costs in performing a service. Losses like these can be insured. . . . Society need not presume that a customer needs special protection. The increased cost to the public that would result from holding a manufacturer liable in tort for injury to the product itself is not justified. Cf. United States v. Carroll Towing Co.. . . Damage to a product itself is most naturally understood as a warranty claim. Such damage means simply that the product has not met the customer's expectations, or, in other words, that the customer has received "insufficient product value." See J. White and R. Summers, Uniform Commercial Code 406 (2d ed. 1980). The maintenance of product value and quality is precisely the purpose of express and implied warranties. See UCC §2-313 (express warranty), §2-314 (implied warranty of merchantability), and §2-315 (warranty of fitness for a particular purpose). Therefore, a claim of a nonworking product can be brought as a breach-of-warranty action. Or, if the customer prefers, it can reject the product or revoke its acceptance and sue for breach of contract. See UCC §§ 2-601, 2-608, 2-612. Contract law, and the law of warranty in particular, is well suited to commercial controversies of the sort involved in this case because the parties may set the terms of their own agreements.6 The manufacturer can restrict its liability, within limits, by disclaiming warranties or limiting remedies. See UCC §§ 2-316, 2-719. In exchange, the purchaser pays less for the product. Since a commercial situation generally does not involve large disparities in bargaining power, cf. Henningsen v. Bloomfield Motors, Inc.,

6We recognize, of course, that warranty and products liability are not static bodies

of law and may overlap. In certain situations, for example, the privity requirement of warranty has been discarded. E.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 380-384, 161 A.2d 69, 81-84 (1960). In other circumstances, a manufacturer may be able to disclaim strict tort liability. . . . Nonetheless, the main currents of tort law run in different directions from those of contract and warranty, and the latter seem to us far more appropriate for commercial disputes of the kind involved here.

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32 N.J. 358, 161 A.2d 69 (1960), we see no reason to intrude into the parties' allocation of the risk. While giving recognition to the manufacturer's bargain, warranty law sufficiently protects the purchaser by allowing it to obtain the benefit of its bargain. . . . The expectation damages available in warranty for purely economic loss give a plaintiff the full benefit of its bargain by compensating for forgone business opportunities. . . . Recovery on a warranty theory would give the charterers their repair costs and lost profits, and would place them in the position they would have been in had the turbines functioned properly.7 See Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929). Thus, both the nature of the injury and the resulting damages indicate it is more natural to think of injury to a product itself in terms of warranty. A warranty action also has a built-in limitation on liability, whereas a tort action could subject the manufacturer to damages of an indefinite amount. The limitation in a contract action comes from the agreement of the parties and the requirement that consequential damages, such as lost profits, be a foreseeable result of the breach. See Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854). In a warranty action where the loss is purely economic, the limitation derives from the requirements of foreseeability and of privity, which is still generally enforced for such claims in a commercial setting. See UCC §2-715. . . . In products-liability law, where there is a duty to the public generally, forseeability is an inadequate brake. . . . Permitting recovery for all foreseeable claims for purely economic loss could make a manufacturer liable for vast sums. It would be difficult for a manufacturer to take into account the expectations of persons downstream who may encounter its product. In this case, for example, if the charterers--already one step removed from the transaction--were permitted to recover their economic losses, then the companies that subchartered the ships might claim their economic losses from the delays, and the charterers' customers also might claim their economic losses, and so on. "The law does not spread its protection so far." Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309(1927).

7In contrast, tort damages generally compensate the plaintiff for loss and return

him to the position he occupied before the injury. . . . Tort damages are analogous to reliance damages, which are awarded in contract when there is particular difficulty in measuring the expectation interest. . . .

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And to the extent that courts try to limit purely economic damages in tort, they do so by relying on a far murkier line, one that negates the charterers' contention that permitting such recovery under a products-liability theory enables admiralty courts to avoid difficult line drawing. . . . D For the first three counts, the defective turbine components allegedly injured only the turbines themselves. Therefore, a strict products-liability theory of recovery is unavailable to the charterers. Any warranty claims would be subject to Delaval's limitation, both in time and scope, of its warranty liability. . . . . . . Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to persons or other property. Even assuming that Delaval's supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based on negligence to avoid causing purely economic loss. . . . Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. . . . [we] affirm the entry of judgment for Delaval. It is so ordered.

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POUNCEY v. FORD United States Court of Appeals, Fifth Circuit. 464 F.2d 957 (1972). Action against automobile manufacturer for injury sustained when blade broke off radiator fan of automobile which had been driven approximately 62,000 miles. The United States District Court for the Middle District of Alabama, at Montgomery, Sam C. Pointer, Jr., J., rendered judgment for plaintiff and defendant appealed. The Court of Appeals, Lewis R. Morgan, Circuit Judge, held that evidence, including expert's testimony that defect in steel was proximate cause of accident and evidence negating contentions that failure was due to deformations in blade, supported verdict for plaintiff. Affirmed. LEWIS R. MORGAN, Circuit Judge: Pouncey, the appellee, was injured while putting antifreeze in his 1966 Ford automobile. While he was accelerating the engine with the hood open, a blade broke off the radiator fan, cut through the water hose, and struck him in the face causing permanent facial disfigurement. Pouncey had purchased the car secondhand approximately six months before the accident .... The car had been driven approximately 62,000 miles at the time of the accident. * * * I. As is frequently the case in products liability litigation, the trial produced a conflict in expert testimony. The main thrust of Pouncey's case was that the fan blade failure occurred because of a fatigue fracture in the metal fan blade. It was Pouncey's theory that the premature fatigue failure was caused by an excessive number of inclusions in the metal of the blade. An inclusion is a non-metallic impurity in the steel which weakens the metal. To substantiate this theory, Pouncey called Dr. C. H. T. Wilkins, a metallurgical engineer, as an expert witness. Dr. Wilkins testified that he cut and mounted a specimen

36

of metal from the failed blade. He also cut and mounted specimens from a blade which had not failed and from another Ford fan blade which had failed. On microscopic examination of this mount, Dr. Wilkins found a "surprising number of inclusions" which he did not expect to find in this type steel. These inclusions, he testified, were an identifiable defect in the metal which served as "stress concentrating areas" and "lowered the endurance limit of the fan". Dr. Wilkins also testified concerning certain bends and deformations in the blade. He conceded that there appeared to be some bends in the blades but he expressed the opinion that the blade which actually failed was not bent. In his opinion, the bends in the blades were not the cause of the fatigue failure. Not surprisingly, Ford's expert witnesses took a different view of the facts. Ford first called Dr. Robert Hochman, another metallurgical engineer. Dr. Hochman testified that he received and examined the metal specimen that had been mounted by Dr. Wilkins. It was his opinion that the specimen had been mounted in such a way that acid seeped into the cracks between the specimens of metal, causing an exaggerated appearance of large inclusions, Dr. Hochman remounted and polished the specimens and took photomicrographs of them. These photomicrographs showed an acceptable inclusion level, testified Dr. Hochman, which conformed with standards established by the Society of Automotive Engineers. Dr. Hochman attributed the fracture to a different source. He testified that one arm of the blade was bent and that this would have a major effect in throwing the fan out of balance. He also noted that the ends of the blades were bent and cracked and that this condition would also tend to imbalance the fan. An out-of-balance condition, Dr. Hochman testified, could cause the blade to vibrate and set up a high stress pattern which would result in the acceleration of metal fatigue. Dr. Hochman also noted a small notch in the fracture surface which could have been attributed to impact damage. Ford also called two other expert witnesses, both of whom were Ford employees. Mr. Phillip Burch, a Ford design engineer, testified as to the testing procedures utilized by Ford on newly designed radiator fans. Mr. Robert Riding, another Ford engineer, testified concerning alleged bends in the fan blades. He stated in his opinion that the fan failed because of an unbalanced condition in the fan which may have been caused by a front end collision or by rough handling.

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II. Ford contends that the district court erred in refusing to grant its motion for judgment notwithstanding the verdict. We conclude, however, that applying the standard of Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, the evidence was sufficient to take the case to the jury. * * * In the case at bar, there was direct evidence that Ford's supplier manufactured the blades with "dirty" spring steel. There is also testimony by Pouncey's expert that Ford and its supplier could reasonably expect a premature fatigue failure from steel with that level of inclusions. Finally, Ford itself offered no evidence as to the quality control procedures actually employed with regard to the radiator fans produced in 1966.... The court below committed no error in permitting the jury to infer from this evidence negligence on the part of Ford in placing on the market a defective radiator fan which could reasonably have been expected to produce injury or damage.

In summary, Pouncey produced expert testimony that a defect in the steel used to construct the fan was the proximate cause of the accident. In addition, he offered evidence that negated Ford's contentions that the failure was due to deformations in the blade which, in turn, were caused by a front-end collision. Ford joined issue based on its own experts' testimony that the level of inclusions was acceptable and that the fracture was caused by imbalance in the blades. As this court has previously observed:

It is not our function to determine which side has produced the heavier evidence. Once the court has determined that the plaintiff has brought forward sufficient evidence to warrant jury submission, it then becomes the function of the jury to strike the balance between the parties.

Ford Motor Company v. Mathis, 5 Cir. 1963, 322 F.2d 267. The disputed evidence as to the cause of the blade fracture was such that reasonable men might reach different conclusions. The court properly denied the motions for directed verdict and for judgment notwithstanding the verdict. Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365. * * * Affirmed.

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JACKSON v. COAST PAINT AND LACQUER COMPANY United States Court of Appeals 499 F.2d 809 (9th Cir.1974) OPINION MERRILL, Circuit Judge: In this diversity case plaintiff seeks to recover from a manufacturer-seller of paint for personal injuries which he claims resulted from failure of the manufacturer to warn adequately of the product's dangerous characteristics. The case was presented to a jury on a theory of strict liability.8 The jury returned a general verdict for the defendant. On this appeal plaintiff challenges the correctness of the district court's instructions to the jury on two issues: the nature of the defendant's duty to warn, and the defense of contributory negligence. Concluding that there was indeed error in these instructions, we reverse. In 1964 plaintiff, a citizen of Utah, was a journeyman painter employed by a Utah painting contractor. His employer entered into a contract with a Montana manufacturing company to paint some railroad tank cars that were to be used for the shipment of bulk quantities of honey. Plaintiff was sent by his employer to Billings, Montana, to do the work. The paint used to coat the inside of the tank cars, “Copon EA9,” was manufactured and sold by defendant Reliance Universal, Inc., a Texas manufacturer of industrial paints and coatings. It is an epoxy paint which is highly flammable. While plaintiff was spray painting the inside of one of the tanks a fire occurred and he was very severely burned. The fuel of the fire consisted of the paint fumes which had accumulated in the tank. The cause of ignition is uncertain and was a disputed issue at trial. There was some evidence that it was caused by breakage of a light bulb used by plaintiff in the tank. This is the theory favored by defendant. There was other evidence, mainly expert testimony including an experiment-demonstration, to the effect that the fire could have been touched off by static electricity, perhaps generated by the friction of the rubber soles of plaintiff's shoes on the tank floor. This is the theory favored by plaintiff.

8It was also presented on a theory of negligence. However, plaintiff here asserts

no error respecting the negligence count.

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An officer of Reliance testified that Reliance was aware of the fact that Copon EA9 is hazardous if not properly used under proper conditions. Two hazards are recognized to be associated with use of the paint: breathing the toxic vapors, and fire. The label on the paint used by plaintiff was introduced into evidence. It contains a warning which first refers to the toxicity of the paint if ingested, and then states:

“Keep away from heat, sparks, and open flame. USE WITH ADEQUATE VENTILATION. Avoid prolonged contact with skin and breathing of spray mist. Close container after each use. KEEP OUT OF REACH OF CHILDREN.”

Plaintiff testified that he and other painters of his acquaintance understood the warning regarding adequate ventilation to refer only to the danger of breathing toxic vapors. While painting the tanks he had contrived and used a tube and mask which enabled him to breathe fresh air from outside the tank. Otherwise plaintiff took no precautions in the nature of “ventilation.” He testified that he had been unaware of the possibility that flammable vapors permitted to accumulate in a closed, inadequately ventilated area could be touched off by a spark resulting in a fire or explosion. There was, however, other evidence that some persons in plaintiff's company were aware that such a danger existed. This court has held, “In the absence of controlling decisions of the Montana Supreme Court, the District Court properly looked to and adopted . . . the Restatement of the Law of Torts, 2d, as the law of Montana.” Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d 1263, 1270 (9th Cir. 1969); accord, Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 127 (9th Cir. 1968). In most respects the instructions to the jury did comport with the law as set forth in the Restatement (Second) of Torts (1965) and other relevant authorities. However, in two respects they failed to state the law correctly; and they failed in a manner which may have been, on the evidence presented, highly prejudicial to the plaintiff. . . . It is not essential to strict liability that the product be defective in

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the sense that it was not properly manufactured. If the product is unreasonably dangerous that is enough. . . . A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics. . . . [The Court’s quotations for Restatement §402A and comments i and j are omitted.] The district court's instructions to the jury included the following:

“[D]efendant had a duty to supply plaintiff or his employer with proper and adequate directions for the use of the paint and proper and adequate warnings concerning the dangers inherent in the paint.

. . .

If the defendant had reason to believe that plaintiff or his employer knew or would discover the hazards inherent in the paint, then defendant had no duty to warn plaintiff or his employer of these dangers.”

In our judgment this instruction was erroneous in three respects. First. It suggests that liability is based on negligence rather than strict liability. (It is in fact patterned upon 388(b) of the Restatement, which sets forth the elements of liability on the part of a supplier of a chattel for negligent failure to warn of dangers known to the supplier.) In strict liability it is of no moment what defendant “had reason to believe.” Liability arises from “sell[ing] any product in a defective condition unreasonably dangerous to the user or consumer.” It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability. Second. Plaintiff has contended that a more specific warning of the fire hazard ought to have been given, namely, that accumulated fumes or vapors in an inadequately ventilated area may be ignited by a spark resulting in a violent fire or explosion. His position is that the absence of such a specific warning rendered the paint as marketed by the defendant “unreasonably dangerous to the user or consumer”; in other words, that there was a “duty to warn” of the particular hazard. Defendant contends, in this regard, that it had no duty to warn of this particular hazard because, in the words of comment j to 402A, “the danger, or potentiality of danger, is generally known and

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recognized.” On the evidence presented, this was an issue for the jury. The challenged instruction, however, presents the wrong issue. It is not the knowledge actually possessed by the plaintiff, individually, that determines whether the absence of warning renders a product unreasonably dangerous. The subjective knowledge of the plaintiff becomes relevant upon the issue of contributory negligence, as we explain below. On the issue of duty to warn, however, the question to be put to the jury is whether “the danger, or potentiality of danger, is generally known and recognized”; whether the product as sold was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement s 402A, comments j, i (emphasis added). Third. The most serious error in the challenged instruction is the statement that knowledge of the hazard on the part of plaintiff's employer would obviate any duty to warn plaintiff. Besides improperly focusing on the knowledge of an individual rather than general or common knowledge, this erroneously conceives the “community” whose common knowledge the jury is to ascertain. The seller's duty under § 402A is to “the ultimate user or consumer.” At least in the case of paint sold in labeled containers, the adequacy of warnings must be measured according to whatever knowledge and understanding may be common to painters who will actually open the containers and use the paints; the possibly superior knowledge and understanding of painting contractors is irrelevant. The general principle can be illustrated by comparing to this case two cases relied upon by defendant: Hopkins v. E. I. DuPont de Nemours & Co., 212 F.2d 623 (3d Cir.), cert. denied, 348 U.S. 872, 75 S.Ct. 108, 99 L.Ed. 686 (1954), and Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d 1263 (9th Cir. 1969). In Hopkins plaintiff's decedent was killed when he placed a stick of dynamite manufactured by the defendant into a freshly drilled hole in a rock which had not been allowed to cool; the heat generated by the drilling set off the charge. Hopkins contended that the defendant manufacturer had a duty to warn of this particular hazard. The court of appeals held that there was no such duty because, as shown by the testimony of the decedent's own foreman, the danger was well known to those who supervise blasting operations. In Jacobson plaintiff's decedent was killed when steel strand

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manufactured by the defendant broke during a procedure in the manufacture of prestressed concrete by the decedent's employer. Plaintiff contended that the defendant had inadequately warned the decedent of the particular danger of overstressing the strand. The decedent had been a foreman, whose work was done under the supervision and direction of several superiors. One of them, the production coordinator, admitted knowledge of the relevant danger. There was testimony of other experts in the field that the danger was well known. On these facts this court followed Hopkins. 409 F.2d at 1273. We adopted the trial court's conclusions of law:

"‘Where a supplier furnishes chattels, the use of which is to be directed by technicians or engineers, it is sufficient to insulate the supplier from liability for failure to warn if the warnings given are sufficient to apprise the engineers or technicians of the dangers involved, or if the technicians have knowledge of the dangers involved. There is no duty to warn those who simply follow the directions of the engineers or technicians. . . .’"

409 F.2d at 1273 (emphasis added).9 There are important distinctions between products such as the dynamite involved in Hopkins or the steel strand in Jacobson and the paint involved here. Paint is not a product “the use of which is to be directed by technicians or engineers.” Further it is a product so dispensed that warning to the ultimate consumer can readily be given. Restatement §388, comment n, states:

“Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the

9While Jacobson can be read as focusing on the knowledge actually possessed by

the particular supervising personnel involved in determining whether a duty to warn existed, we do not so read it. From the facts it appears that the knowledge had by the supervising personnel of the defendant was shared by such personnel in the industry generally and thus was “ordinary knowledge common to the (relevant) community.”

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chattel. The question remains whether this method gives reasonable assurance that the information will reach those whose safety depends upon their having it.

. . .

Many such articles can be made to carry their own message to the understanding of those who are likely to use them . . . by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.” (emphases added).

. . . A distinction analogous to the one we draw here-- between packaged paint, on the one hand, and bulk steel strand or dynamite, on the other-- was made in Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 130-131 (9th Cir. 1968). There we noted that in the case of a prescription drug, normally a warning of dangers given to the physician is sufficient; but we held that when a drug was distributed “to all comers at mass clinics without an individualized balancing by a physician of the risks involved,” a warning sufficient to apprize the patient himself of the risks was mandated. Accordingly we hold that the duty to warn runs, on these facts, directly to the painter, and is not discharged when the employer alone is informed of the danger. [The court found errors in the instruction on contributory negligence.] Reversed and remanded for new trial.

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COTTON v. BUCKEYE GAS PRODUCTS COMPANY United States Court of Appeals, District of Columbia Circuit 840 F.2d 935 (1988) WILLIAMS, Circuit Judge: Plaintiff Eugene A. Cotton seeks damages for injuries that he suffered when propane gas supplied by defendant Buckeye Gas Products Company burst into flames. He contends that Buckeye failed to warn him of the dangers of its product. The jury delivered a verdict for Cotton. The district court granted judgment notwithstanding the verdict on the ground that Cotton's injuries were not proximately caused by defendant's conduct. Having reviewed all the evidence in the light most favorable to Cotton, we uphold the district court's judgment n.o.v. In our view, reasonable jurors could find neither that Buckeye breached a duty to warn nor that Cotton's injuries were proximately caused by any inadequacy in defendant's warnings. I. BACKGROUND On the night of January 27, 1985 Cotton, an employee of Miller & Long, a concrete construction company, was performing heater watch duty at a building under construction on Leesburg Pike in Tysons Corner, Virginia. This task consists of monitoring propane-fueled portable heaters used to cure concrete in frigid weather and changing propane-filled cylinders as they run low on gas. The propane cylinders used on the night of January 27 were supplied by Buckeye. The areas in which the heaters and cylinders were contained were wrapped, ceiling to floor, with heavy polyethylene curtains in order to contain the heat. When Cotton and his co-worker removed used cylinders from heaters they stored them on the same floor where they had been in use. This inside storage followed Miller & Long's established weekend practice (January 27 was a Sunday). The practice was in flat disregard of the instructions in a National LP Gas Association pamphlet ("NLPGA pamphlet") that Buckeye delivered to its customers as a routine matter, . . . specifying that cylinders not in use should be stored "outside at ground level." . . . (On weekdays Miller & Long followed the pamphlet's storage directions.)

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Although Cotton's superiors at Miller & Long instructed him to close the valves on the cylinders when changing or moving them, he did not do so on the night involved. Fire investigators at the scene of the accident found the valves wide open on 35 used but not empty propane cylinders. . . . Gas escaping from these cylinders ignited; the resulting flames severely burned Cotton. . . . The Fairfax County Fire Marshall's Office investigated the fire and concluded that it would not have happened if the valves had been closed. . . . . . . III. DUTY TO WARN . . . Restatement (Second) of Torts §388 (1965) . . . provides that the manufacturer of a chattel is liable when it (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. The cylinders supplied to Miller & Long by Buckeye bore labels clearly and conspicuously warning that the cylinders contained "flammable" gas and should not be used or stored in "living areas." . . . According to plaintiff, this warning was inadequate because it failed (1) to warn about the explosive properties of propane; (2) to instruct users to shut the valves on used cylinders; (3) to advise users not to use or store the cylinders in enclosed, unventilated areas; and (4) to warn that gas might escape from used cylinders believed to be empty. Failure-to-warn cases have the curious property that, when the episode is examined in hindsight, it appears as though addition of warnings keyed to a particular accident would be virtually cost free. What could be simpler than for the manufacturer to add the few simple items noted above? The primary cost is, in fact, the increase in time and effort required for the user to grasp the message. The inclusion of each extra item dilutes the punch of every other item. Given short attention spans, items crowd each other out; they get lost in fine print. Here, in fact, Buckeye responded to the information-cost problem with a dual approach: a brief message on the canisters themselves and a more detailed one in the NLPGA pamphlet delivered to Miller & Long (and posted on the bulletin board at the Leesburg Pike construction site where Cotton

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was employed . . . .). Plaintiff's analysis completely disregards the problem of information costs. He asserts that "it would have been neither difficult nor costly for Buckeye to have purchased or created for attachment to its propane cylinders a clearer, more explicit label, such as the alternatives introduced at trial, warning of propane's dangers and instructing how to avoid them.". . . . But he offers no reason to suppose that any alternative package of warnings was preferable. He discounts altogether the warnings in the pamphlet, without even considering what the cannister warning would have looked like if Buckeye had supplemented it not only with the special items he is personally interested in--in hindsight--but also with all other equally valuable items. . . . Cotton's first complaint is that in neglecting to mention that propane is explosive, as well as flammable, the label failed to "convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person.". . . But the record here gives no suggestion of any relevant difference between "flammable" and "explosive." Cotton admitted that he knew propane was flammable and could ignite and burn him. . . . That is precisely what happened. . . . Although the other warnings that plaintiff contends should have been given were not contained in the cylinder labels, they were embodied in the NLPGA pamphlet. It warned that the cylinders should be used only in ventilated areas and that the cylinder valves should be closed. . . . (While the pamphlet did not explicitly warn that the valves should be closed on cylinders withdrawn from use because they might still have propane left in them, this was inferable as a matter of common sense from the pamphlet's insistence on keeping valves shut, on specific safety criteria for valves, and on proper use of valves. Again, a warning need not dot every I.) . . . Plaintiff relies substantially on appellate and district court decisions in the Fourth Circuit allowing juries wide leeway in finding warnings inadequate. See, e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir.1962) (infant dies from swallowing small quantity of furniture polish; adequacy of warning, "May be harmful if swallowed especially by children," in small print on bottle, was question for jury); Whitehurst v. Revlon, Inc., 307 F.Supp. 918, 921 (E.D.Va.1969) (smoker burned when her cigarette ignited fumes from fingernail polish; question for jury whether

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warning, "DO NOT HEAT OR USE NEAR FIRE," was adequate). We think these cases distinguishable. In Spruill, for example, the court emphasized that the warning that was given "was placed so as to conceal it from all but the most cautious users. It is located in the midst of a body of print of the same size and color, with nothing to attract special attention to it except the words 'Safety Note'." 308 F.2d at 86. By contrast, Buckeye's label warned in large, bold letters that the propane was flammable. In Whitehurst, the gap between the injunction not to "use near fire" and the reality that a mere cigarette near the fingernail polish could be hazardous seems greater than any shortfall claimed here. . . . Quite apart from the wording of the Buckeye warning, Buckeye had reason to rely on Cotton's employer, Miller & Long, to alert Cotton to the hazards of propane. . . . Comment n to §388 makes clear that a product supplier may satisfy its duty to warn by providing information of the product's dangers to a third person upon whom it can reasonably rely to communicate the information to the product's ultimate users. . . . Comment n is not explicitly addressed to an employer as intermediary, but notes how the plausibility that a buyer will pass on hazard information will vary among buyers (e.g., contrasting "ordinary normal man to whose discredit the supplier knows nothing" with party intending to resell and whose resale may be impeded by full disclosure). Insofar as categories of buyers may control, an employer-purchaser would seem most likely to be reliable. Adams v. Union Carbide Corp., 737 F.2d 1453, 1456-58 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), specifically noted the point. Applying comment n where the supplier of a toxic chemical to General Motors relied on it to inform its workers of the hazards, the court observed that the employer-purchaser's duty to provide its employees a safe place to work supported the conclusion that reliance was reasonable. . . . It was eminently reasonable for Buckeye to rely on Miller & Long to instruct its employees on the proper handling of propane. As noted above, it had given Miller & Long the NLPGA pamphlet, which contained instructions on the safe use of propane. It knew that Miller & Long was a well-established concrete construction company that had purchased propane for many years from several suppliers. . . . It knew that Miller & Long had its own safety department and a good safety record. . . . Buckeye

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representatives had visited a number of Miller & Long sites and verified that Miller & Long maintained proper outside storage and filling facilities for the propane cylinders. (We can find no evidence that Buckeye was aware of Miller & Long's weekend storage practice, though plaintiff claims the contrary. . . .) On top of that, Buckeye offered to train Miller & Long and its employees in the safe use and handling of the propane cylinders. . . . In rejecting the offer, Miller & Long represented that the company was knowledgeable in the use and handling of propane and stressed that it had its own safety director and employee safety training program. . . . In light of the warnings on the propane cylinder labels and in the NLPGA pamphlet, as well as Buckeye's ample reasons to rely on Miller & Long to train its employees adequately, we hold that reasonable jurors could not find that Buckeye breached any duty to warn. IV. PROXIMATE CAUSE Under Virginia law, proximate cause is " 'that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.' " Coleman v. Blankenship Oil Corp., 221 Va. 124, 267 S.E.2d 143, 147 (1980) (quoting Beale v. Jones, 210 Va. 519, 171 S.E.2d 851, 853 (1970)). . . . We believe no reasonable juror could find that further warnings would have averted the accident. As found by the district court, Cotton knew of the dangers associated with working with propane gas. He knew that propane was flammable. . . . He also knew that any propane remaining in a cylinder whose valve was left open would escape, . . . could be set on fire, and could burn him. . . . Cotton testified that he was trained on the job to close the valves on the cylinders, . . . but admitted that on the night in question, he disregarded his employer's instructions and failed to close the valves. . . . Additionally, the NLPGA pamphlet supplied by Buckeye and posted at the job site specifically directs the user to store the cylinders "outside at ground level" and to "[m]ake sure cylinder valves are closed." . . . Plaintiff responds with the distinction, already considered above, between notice that the gas was "flammable" and the (omitted) notice that it was explosive. He testified at trial that he believed it was safe to store used propane cylinders in unventilated areas as long as there was no flame, regardless of whether the valves were

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open, . . . . The additional word "explosive," plus a warning to store in ventilated areas, would have led him to take necessary precautions: either to shut the valves or at least to have knocked holes in the plastic sheeting. . . . We think this theory utterly implausible. Ordinary people know that fire is potentially as lethal as explosion, and flammability connotes extreme readiness to burst into flames. Only by the wildest--forbidden--speculation could a jury suppose that someone who left valves open in the face of explicit warnings about fire and instructions to keep valves closed would modify his conduct merely because of an added reference to explosion. The theory on knocking holes in the plastic fails on two counts. As with the valve-closing theory, it assumes about plaintiff what is manifestly implausible. One who leaves valves open in disregard of his employer's direct oral instructions is hardly likely, merely because of warnings of the need for ventilation (coupled with whatever additional information a reasonable supplier would have regarded as of equal value. . .), to embark on an ambitious program of plastic piercing. Second, there is no evidence that such a program would have prevented the fire. Plaintiff . . . notes testimony of Charles Greene, an industrial safety expert witness, that if the propane cylinders had been stored outside the building, even with the valves open, there would have been no explosion. . . . But evidence that outside storage might have prevented the accident hardly indicates that knocking holes in the plastic covering would have done so. . . . Plaintiff argues that if juries were allowed to find that Spruill's placement of the furniture polish near her child's crib, Barnes's consumption of burning alcohol, and Whitehurst's smoking of her cigarette while applying fingernail polish did not constitute intervening causes superseding any inadequate warning, a fortiori a jury should be permitted to find that Cotton's conduct did not supersede any failure to warn in this case. In none of these cases, however, were the warnings given as clear, or the plaintiff's indifference to them as blatant, as in the present case. . . . Because we find that reasonable jurors could not disagree that Cotton failed to establish by a preponderance of the evidence that Buckeye breached its duty to warn or that Buckeye's conduct proximately caused Cotton's injuries, we affirm

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the district court's judgment n.o.v.

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POTTER v. FIRESTONE Supreme Court of California 6 Cal.4th 965, 863 P.2d 795 (1993) BAXTER, Justice. 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 in 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 . . . . (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. 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

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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.

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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. . . . Of these, both benzene and vinyl chloride are known to be human carcinogens. . . [and] 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. * * * 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 [sic ] of life threatening disease. Their fears are not merely subjective but are corroborated by substantial medical and scientific opinion." Based on

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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,10 as well as damages totalling $108,100 for the general disruption of their lives. . . . 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. . . . 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

10The court determined that these damages were separate and distinct from

plaintiffs' basic fear of developing cancer or other serious physical illnesses in the future.

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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. . . . [T]he 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. . . . * * * 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. . . . [T]he only damages at issue here are the fear of cancer component of the emotional distress award, [and] the award for medical monitoring costs. . . . A. Negligence: Fear of Cancer "Fear of cancer" is a term generally used to describe a present anxiety over developing cancer in the future.11 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. . . .

11Some commentators and courts have referred to claims for "fear of cancer" as

"cancerphobia" claims. . . . Strictly speaking, however, there is a distinction between fear of cancer and cancerphobia. Cancerphobia, as a "phobic reaction," is a mental illness that is the recurrent experience of dread of a cancer in the absence of objective danger. In contrast, the fear of cancer is a claimed anxiety caused by the fear of developing cancer and is not a mental illness. (See ibid.) This opinion is concerned only with fear of cancer as a form of emotional distress and not with cancerphobia. Furthermore, while plaintiffs identified fear of cancer as the principal basis for the emotional distress claim at issue, our discussion is equally relevant to emotional distress engendered by fear that other types of serious physical illness or injury may result from toxic exposure.

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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. . . 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, [FN6] other jurisdictions have concluded that such damages are recoverable when they are derivative of a claim for serious physical injuries. . . . In these cases, the existence of a present physical injury, rather than the degree of probability that the disease may actually develop, is determinative. * * * . . . 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 [The court next determined whether the absence of a present physical injury precludes recovery for emotional distress engendered by fear of cancer. The court concluded that] 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

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property or financial interests. [However, the requirement for actual physical injury was discarded prior to this case.] 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 *989 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, 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." 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.

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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 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 *990 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.

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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 **812 difficult ***567 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, *991 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

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unrestricted plaintiff class demonstrates the necessity of imposing some limit on the class. . . . 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. . . . 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.12 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. . . .

12 For example, numerous lawsuits were brought by those who ingested or whose

mothers ingested the prescription drug diethylstilbestrol (DES). . . ; Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 [brought as class action];. . . Although DES was widely marketed and prescribed as a preventative for miscarriage throughout the late 1940's through the 1960's, studies later indicated the drug was a carcinogen in females and their offspring. According to the DES lawsuits, manufacturers and physicians inadequately tested the drug and failed to provide warnings of its carcinogenic effects. In many of these suits, plaintiffs included fear of cancer claims. . . .

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* * * 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 physically injured we make it impossible to compensate those suffering of permanent and serious physical injuries." (Willmore, 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. . . . 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 ***569 **814 might deem knowledge of a 2 or 5 percent likelihood of future illness or injury to be sufficient . . . 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

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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." 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. . . . 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. . . . 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,13 they have thus far declined to do so in the context of a fear of

13An increased risk claim generally refers to a plaintiff who, as a result of a toxic

exposure, suffers no presently existing physical injury but faces an increased risk of developing cancer or other illness in the future. The vast majority of courts that recognize increased risk claims require the plaintiff to demonstrate an actual risk or probability of developing cancer or other illness in the future as a result of the exposure. "While it is unnecessary that the medical evidence conclusively establish with absolute certainty that the future disease or condition will occur, mere conjecture or even possibility does not justify the court awarding damages for a future disability which may never materialize.". . .

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cancer claim. . . 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. . . . * * * 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. * * * C. Medial Monitoring Costs In the context of a toxic exposure action, a claim for medical monitoring seeks to recover the cost of future periodic medial examinations intended to facilitate early detection and treatment of disease caused by plaintiff’s exposure to toxic substances. (Ayers v. Jackson Tp. (1987) 106 N.J. 557, 525 A. 2d 287, 308 [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.

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The trial court awarded medical monitoring damages to plaintiffs, determining that “[s]ince plaintiffs mus 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 Appeals reversed. Citing Civil Code section 3283,14 the court concluded that such an award must be based upon either a present physical injury or a threat of 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 Appeals judgment in this regard. Essentially, Firestone, amici curiae, and the Court of Appeals 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 vies. . . . 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].15 . . . In our view, expenditures for prospective medical testing and evaluation, which would be unnecessary if 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

14Civil Code section 3283 provides: “Damages may be awarded, in a judicial

proceeding, for detriment resulting after the commencement thereof, or certain to result in the future.”

15Civil Code section 3333 sets forth the measure of damages applicable to tortious conduct: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

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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,.) 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. . . . Consistent with these other decisions, the court determined that such recovery was not available solely upon proof of an exposure to toxic chemicals; rather, there must be a further showing that the need for monitoring is a reasonably certain consequence of the exposure, based upon a consideration of at least the following five factors: (1) the significance and extent of the plaintiff's exposure to the chemicals; (2) the relative toxicity of the chemicals; (3) the seriousness of the diseases for which plaintiff is at an increased risk; (4) the relative increase in the plaintiff's chances of developing a disease as a result of the exposure, when compared to (a) plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of members of the public at large of developing the disease; and (5) the clinical value of early detection and diagnosis Like the court in Miranda, supra, and Ayers, supra,we conclude that a reasonably certain need for medical monitoring is an item of damage for which compensation should be allowed. Recognition that a defendant's conduct has created the need for future medical monitoring does not create a new tort. It is simply a compensable item of damage when liability is established under traditional tort theories of recovery. That medical monitoring may be called for as a result of a defendant's tortious conduct, even in the absence of actual physical injury, was compellingly demonstrated in the case of Friends For All Children, Inc. v. Lockheed Aircraft Corp. (D.C.Cir.1984) 746 F.2d 816 [hereafter Friends For All Children ]. There, suit was instituted on behalf of 149 Vietnamese orphaned children who survived a

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plane crash during the evacuation of Vietnam in 1975. The complaint alleged that because of decompression, as well as the impact of the crash, the children suffered from a neurological disorder generically classified as minimal brain dysfunction. In that case, the Court of Appeals affirmed the imposition of liability on Lockheed for diagnostic examination expenses because the crash proximately caused the need for a comprehensive diagnostic examination. In doing so, the court rejected the argument that the need for diagnostic examination was not a compensable injury, and, as did the court in Miranda, supra, cited with approval the Restatement's definition of injury as " 'the invasion of any legally protected interest of another.' " (Citing Rest.2d Torts, § 7.) Consequently, the court in Friends For All Children, supra, held that a reasonable need for medical examinations was itself compensable, without proof of other injury: "It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations." It bears emphasizing that allowing compensation for medical monitoring costs "does not require courts to speculate about the probability of future *1008 injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate. Indeed, "[s]cience may well counsel medical intervention with respect to a known health risk long before it reaches the point where the law would regard its occurrence as 'reasonably certain.'" We are therefore persuaded that recovery of medical monitoring damages should not be dependent upon a showing that a particular cancer or disease is reasonably certain to occur in the future. [R]ecovery of medical monitoring costs is supported by a number of sound public policy considerations. First, there is an important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease, particularly in light of the value of early diagnosis and treatment for many cancer patients. Second, there is a deterrence value in recognizing medical surveillance claims--"[a]llowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals by defendants.... Third, [t]he availability of a substantial remedy before the consequences of the plaintiffs' exposure are manifest may also have the beneficial effect of preventing or mitigating serious future illnesses and thus reduce the overall costs to the responsible parties. In this regard, the early detection of cancer may improve the prospects for cure, treatment, prolongation of

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life and minimization of pain and disability. Finally, societal notions of fairness and elemental justice are better served by allowing recovery of medical monitoring costs. That is, it would be inequitable for an individual wrongfully exposed to dangerous toxins, but unable to prove that cancer or disease is likely, to have to pay the expense of medical monitoring when such intervention is clearly reasonable and necessary In light of the foregoing, we believe the Miranda court's analysis appropriately recognizes that medical science may necessarily and properly intervene in the absence of physical injury where there is a significant but not necessarily likely risk of serious disease. Accordingly, consistent with Miranda, supra, and the cases cited above, we hold that the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff's toxic exposure and that the recommended monitoring is reasonable. In determining the reasonableness and necessity of monitoring, the following factors are relevant: (1) the significance and extent of the plaintiff's exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase in the chance of onset of disease in the exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of the members of the public at large of developing the disease; (4) the seriousness of the disease for which the plaintiff is at risk; and (5) the clinical value of early detection and diagnosis. Under this holding, it is for the trier of fact to decide, on the basis of competent medical testimony, whether and to what extent the particular plaintiff's exposure to toxic chemicals in a given situation justifies future periodic medical monitoring. We are confident that our holding will not, as Firestone and amici curiae warn, open the floodgates of litigation. The five factors provide substantial evidentiary burdens for toxic exposure plaintiffs and do not, as Firestone insists, allow medical monitoring damages to be based "solely upon a showing of an increased but unquantified risk resulting from exposure to toxic chemicals." Moreover, toxic exposure plaintiffs may recover "only if the evidence establishes the necessity, as a direct consequence of the exposure in issue, for specific monitoring beyond that which an individual should pursue as a matter of general good sense and foresight." (Miranda, supra,)16 Thus there can be no recovery for preventative medical care and checkups to

16Firestone complains that a deep-pocket defendant should not be forced to

finance a plaintiff's long-term health care needs where the plaintiff has a preexisting health condition from having voluntarily exposed himself or herself to far larger

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which members of the public at large should prudently submit. Finally, contrary to the protestations of Firestone and amici curiae, medical monitoring costs are not speculative because they are based upon the specific dollar costs of reasonable and necessary periodic examinations. D. Smoking and Comparative Fault In this case, all four plaintiffs were long-time cigarette smokers. Cigarette smoke evidently contains 40,000 to 60,000 parts per billion (ppb) of benzene-- more than 2,500 times the concentration detected in plaintiffs' contaminated water. We now consider what effect, if any, should be given to the evidence that plaintiffs, on their own, voluntarily ingested this toxic substance. In its statement of decision, the trial court commented: "Defendant points out that plaintiffs have made themselves more susceptible to illness from smoking cigarettes. Although this is no doubt true, it does not relieve defendant from accountability for burdening plaintiffs with a significantly greater vulnerability to serious disease through the ingestion of defendant's toxins." On appeal, Firestone argued that under comparative fault principles, plaintiffs' smoking should reduce or entirely preclude their recovery for fear of cancer. The Court of Appeal rejected this argument, reasoning: "Comparative fault is applicable only if the plaintiff's negligence is a proximate cause of the injury. 'Negligence unrelated to the cause or causes of the accident is not a bar.' [Citations.] In this case, the fact that [plaintiffs] smoked cigarettes is wholly unrelated to the circumstances which caused [plaintiffs'] water supply to be contaminated with toxins. For comparative fault principles to apply, [plaintiffs'] conduct would have had to contribute, in some manner, to this contamination."

quantities of carcinogens, for example, by smoking. (See pt. II.D., post.) While there is no question that a defendant ought not to be liable for medical monitoring of a plaintiff's preexisting condition that is unaffected by a subsequent toxic exposure negligently caused by the defendant, we see no reason why the defendant should not be held responsible for any increased or different monitoring of the preexisting condition (whether or not the preexisting condition is caused by the plaintiff's voluntary conduct) where necessitated as a direct result of the subsequent exposure.

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We agree with Firestone that the Court of Appeal erred in its reasoning. Under comparative fault principles, damages are apportioned based upon the various causes contributing to a plaintiff's harm, as opposed to a particular defendant's negligence. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 813, 119 Cal.Rptr. 858, 532 P.2d 1226 [hereafter Li ] ["liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault"]; see Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, 421, 228 Cal.Rptr. 108 [recognizing that in actions founded on strict products liability, a plaintiff's recovery must be reduced to the extent that his own lack of reasonable care contributed to his injury].) Therefore, the fact that plaintiffs' smoking did not contribute to the contamination of their well water is not determinative. Nonetheless, we agree with the Court of Appeal's ultimate conclusion that comparative fault principles were not properly invoked in this case. Firestone failed to establish a causal link between plaintiffs' smoking and the harm they suffered, i.e., their fear of a significantly increased risk of cancer. As plaintiffs point out, Firestone apparently introduced no evidence at trial suggesting that any portion of plaintiffs' fear was attributable to their own smoking. In other cases, however, when a defendant demonstrates that a plaintiff's smoking is negligent and that a portion of the plaintiff's fear of developing cancer is attributable to the smoking, comparative fault principles may be applied in determining the extent to which the plaintiff's emotional distress damages for such fear should be reduced to reflect the proportion of such damages for which the plaintiff should properly bear the responsibility. (See Li, supra.) Finally, we also observe that evidence of smoking by a plaintiff is relevant to whether the plaintiff's fear is reasonable and genuine. Thus, if a plaintiff had smoked heavily for 20 years without fearing cancer, the trier of fact may consider that evidence in assessing the legitimacy of the plaintiff's fear of cancer claim.17

17Firestone additionally argues that an award for medical monitoring costs to a

plaintiff who smokes should also be reduced to take into account the plaintiff's smoking. As indicated in part II.C., ante (fn. 27), even if a defendant negligently exposes a smoker to toxins that significantly increase the smoker's risk of cancer, that defendant is not liable for reasonably certain future medical monitoring costs unless the recommended monitoring calls for tests or examinations that are in addition to or different from the type of monitoring that the smoker should prudently undertake regardless of the subsequent

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III. DISPOSITION The judgment of the Court of Appeal is reversed insofar as it affirms the award of punitive damages and the award of damages for plaintiffs' fear of cancer, and reverses the award for future medical monitoring. The cause is remanded to the Court of Appeal for further proceedings consistent with this opinion, that may include, if appropriate, a remand to the trial court for a retrial on the above damages, a remand for a retrial on the issue of Firestone's liability for intentional infliction of emotional distress, and/or consideration of issues that were not heretofore reached by the Court of Appeal. LUCAS, C.J., and PANELLI and ARABIAN, JJ., concur. * * *

toxic exposure. However, if additional or different tests and examinations are necessitated as a result of the toxic exposure caused by the defendant, then the defendant bears full responsibility for their costs. The costs of additional or different monitoring made necessary by the defendant's conduct should not have to be shared by the plaintiff since the plaintiff already remains responsible for any monitoring that is shown to be medically advisable due solely to his or her smoking or other preexisting condition.

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STERNER v.WESLEY COLLEGE. INC. United States District Court 747 F. Supp. 263 (D. Delaware 1990) ROTH, District Judge. * * * FACTUAL BACKGROUND Christopher Sterner, Edward McGee, Robert Rumsey and John Stelter, Jr., were students at Wesley College, located in Dover, Delaware, during the 1986-1987 academic year. They resided in Williams Hall, a Wesley College dormitory; Rumsey, Stelter and Sterner in different rooms on the second floor and McGee on the third floor. The College generally required all students under the age of twenty-one to reside in campus dormitories. At approximately 2:00 a.m. on Sunday, April 12, 1987, a fire broke out in Williams Hall, resulting in Christopher Sterner's death from smoke inhalation and in Joseph Morgan's injuries. On the evening of Saturday, April 11, McGee, Rumsey and Stelter had been drinking beer at a party in Rumsey's room. Stelter retired to his own room around midnight, after having an argument at the party. Shortly before 2:00 a.m. on April 12, Rumsey and McGee went to Stelter's room and found the door closed and locked. They tried to rouse Stelter by pounding on his door, but Stelter did not respond. Rumsey and McGee assumed that he was asleep in the room. McGee and Rumsey then went up to McGee's room on the third floor to get two smoke bombs.18 McGee lit one of the smoke bombs in the open hallway of the third floor, and McGee and Rumsey remained there until the bomb had expelled its contents. McGee and Rumsey then returned to the door of Stelter's room on the second floor. A resident assistant for the second floor observed McGee and Rumsey close to Stelter's door and questioned them briefly concerning their presence in the hallway.

18At oral argument, counsel for McGee described the smoke bombs as consisting

of a container approximately one inch in diameter, with a fuse leading to the container. When the fuse is lit, it in turn ignites another flame within the container. This flame ignites fuel which is expelled from the container in the form of thick smoke.

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McGee and Rumsey said nothing about their plan to set off a smoke bomb. The resident assistant left them in the hallway and returned to his room.

McGee then ignited the second smoke bomb and aimed it directly under the door of Stelter's room by holding it close to the base of the door. Rumsey was with McGee as he did this. After the bomb had expelled all of its contents, Rumsey and McGee returned to Rumsey's room. There had been no response from Stelter. Rumsey testified in deposition that they set off the smoke bomb as a prank to rouse Stelter from his room. A fire broke out on the second floor of Williams Hall at this time. McGee and Rumsey concede, for the purpose of their present motions only, that the fire started in Stelter's room and was ignited by the smoke bomb that McGee had aimed under the base of Stelter's door. Stelter kept a rolled-up towel taped to the inside base of his door. McGee and Rumsey were aware of the placement of this towel from prior visits to Stelter's room. Wesley College maintained an uncomplicated type of fire alarm system in Williams Hall. There were two bells on each floor along with mechanical pull switches to set off the alarm when a fire was detected. The alarm system could not detect the presence of smoke or high temperature. Wesley College tested the alarm system before dormitory residents arrived each semester. The system was also tested once a month either by a fire drill or simply by the fact that a false alarm had been set off. * * * At the time of the April 12 fire, the alarm system failed to go off when students pulled the manual switches. The Resident Director, resident assistants and other students in the dormitory shouted in the halls and went door to door to rouse the residents of Williams Hall and evacuate them. When the student in the room next to Christopher Sterner's had fled the fire, Christopher's door was still closed and locked. The firemen, when they arrived, found Christopher lying on the floor at the open door to his room. He was pronounced dead on arrival at the hospital. Joseph Morgan awoke in his smoke filled room. He couldn't see or find the door. He collapsed on the floor and was able to crawl under his

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desk and cover himself with a blanket. The firemen found him there unconscious. . . . . Apparently, at some time in the past, someone had placed a piece of tape in the device to prevent the buzzer from sounding. * * * DISCUSSION In this diversity jurisdiction action, the parents of Christopher Sterner, with his father also acting as administrator of Christopher's estate, brought suit for compensatory and punitive damages against Wesley College, McGee and Rumsey. Joseph Morgan brought suit against Wesley College for compensatory damages. Defendant Wesley College has moved for partial summary judgment on the following grounds: . . . (3) "hedonic" damages are not recoverable in Delaware either a) under the survival statute for Christopher's loss of the enjoyment of like to the same extent and measure as if he had lived, or b) under the wrongful death statute by his parents for Christopher's loss of the enjoyment of life. Wesley College also seeks to bar the testimony of plaintiff's expert witness on "hedonic" damages. Defendants McGee and Rumsey join in the motion by Wesley College and argue separately that their conduct can not be found to exhibit the reckless indifference required for an award of punitive damages under the survival action statutes. Each argument will be addressed in turn below. * * * III. Availability of Hedonic Damages The hedonic value of a decedent's life is defined broadly as the value of the lost pleasures of life. Hedonic damages therefore involve a measure of loss of life's pleasures "separate from the economic productive value" that the decedent would have possessed if he had not died. . . . Plaintiffs argue that they can introduce testimony concerning the hedonic damages to Christopher Sterner due to his injury and death for two purposes. First, the plaintiffs argue that recovery of damages for the hedonic

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value of that portion of decedent's life which was extinguished by the fire should be permitted as a distinct basis for recovery under the Delaware survival statutes, 10 Del.C. §§ 3701 and 3704(a). The Delaware courts have yet to address this issue on point. This Court therefore must attempt to predict how the Delaware Supreme Court would decide this issue. We believe that the Delaware Supreme Court would reject the plaintiffs' argument. . . . . [C]ompensation for the loss of life's amenities is recoverable only if the victim survives the accident giving rise to the cause of action. Any other rule would be contrary to the compensatory objective of awarding damages to tort victims. . . . Even where the victim survives a compensable injury, this Court has never held that loss of life's pleasures could be compensated other than as a component of pain and suffering. Indeed, the two types of loss are interrelated.... Thus, to a large extent it has been the plaintiff's consciousness of his or her inability to enjoy life that we have compensated under the rubric of "loss of life's pleasures". Unlike one who is permanently injured, one who dies as a result of injuries is not condemned to watch life's amenities pass by. Unless we are to equate loss of life's pleasures with loss of life itself, we must view it as something that is compensable only for a living plaintiff who has suffered from that loss. It follows that ... damages for the pain and suffering that may flow from the loss of life's pleasures should only be recovered for the period of time between the accident and the decedent's death. . . . We conclude that plaintiffs in the present action may not recover for the hedonic value of the decedent's lost life as a distinct basis for recovery under the Delaware survival action statute. Plaintiffs may offer evidence of the hedonic value of the decedent's life only to the extent that it is relevant as a measure of the decedent's pain and suffering in the time between the start of the fire in Williams Hall and decedent's death. . . . Second, plaintiffs contend that the hedonic value one could assign to Christopher Sterner's life had he survived should be considered as part of the damages recoverable for the mental anguish suffered by his survivors upon his death. Damages for mental anguish suffered by the survivors can be recovered under the Delaware wrongful death statute, 10 Del.C. § 3724(d)(5). * * *

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The issue in evaluating the mental anguish suffered by the survivors is not what loss of the pleasure of life the decedent might have suffered, but is rather the survivors' "intense experience we commonly refer to as the grieving process following the loss of a loved one.". . . To the extent that part of the survivors' mental anguish is their perception that it is tragic that the decedent's death cut short his enjoyment of life's pleasures, such evidence should be obtained through the testimony of the survivors who suffer such mental anguish, and not through statistical calculations of the value society may place upon the pleasure of living. Moreover, plaintiffs have submitted a proffer of their expert's testimony concerning the hedonic value of the decedent's lost life (Docket Item 148) which indicates that the expert's formulations do not provide such a measure of the parents' mental anguish. Although plaintiffs argued in their briefs and oral argument that they wished to present evidence of the hedonic value of Christopher Sterner's life as a component of the mental anguish suffered by his parents, and therefore recoverable under 10 Del.C. § 3724(d)(5), the description of the bases and formulation of this evidence by plaintiffs' expert demonstrates that it could be presented only as a distinct basis for recovery and not as a measure of the parents' mental anguish. Plaintiffs have presented no persuasive authority for the proposition that hedonic damages are recoverable as a distinct form of recovery under section 3724. For the reasons stated above, we find, and we predict that the Delaware Supreme Court would also find, that evidence of the hedonic value of Christopher Sterner's life is inadmissible under Delaware's wrongful death statute, as either a distinct basis for recovery or as a purported measure of the parents' mental anguish. CONCLUSION * * * Wesley College's motion for a partial summary judgment that hedonic damages are not available as a distinct basis for recovery under the Delaware survival action statutes, 10 Del.C. §§ 3701 and 3704(a), is granted. Plaintiffs may utilize evidence of the hedonic loss or value concerning Christopher Sterner's death only to the extent that such evidence is submitted as a component of pain and suffering incurred by Christopher Sterner and recoverable under the Delaware survival statutes. Wesley College's motion for a partial summary judgment that plaintiffs be precluded from introducing evidence of the hedonic loss to Christopher Sterner as a component of the

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damages for mental anguish suffered by his survivors and recoverable under 10 Del.C. § 3724(d)(5), is granted. An appropriate order shall issue.

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BORER v.AMERICAN AIRLINES, INC. Supreme Court of California 19 Cal.3d 441, 563 P.2d 858, 138 Cal Rptr. 302(1977) TOBRINER, Acting Chief Justice. In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 we held that a married person whose spouse had been injured by the negligence of a third party may maintain a cause of action for loss of 'consortium.' We defined loss of 'consortium' as the 'loss of conjugal fellowship and sexual relations' (12 Cal.3d at p. 385, 115 Cal.Rptr. at p. 766, 525 P.2d at p. 670), but ruled that the term included the loss of love, companionship, society, sexual relations, and household services. Our decision carefully avoided resolution of the question whether anyone other than the spouse of a negligently injured person, such as a child or a parent, could maintain a cause of action analogous to that upheld in Rodriguez. We face that issue today: the present case presents a claim by nine children for the loss of the services, companionship, affection and guidance of their mother. . . . * * * . . . .Unpersuaded of any legal distinction between a parent's claim for loss of a child's consortium and a child's claim for loss of a parent's consortium, we granted hearings in the instant case and in Baxter v. Superior Court in order to address generally the question whether to recognize a new cause of action for loss of consortium in a parent-child relationship. Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed. Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses in the present context, moreover, may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants. Taking these considerations into account, we shall explain why we have concluded that the payment of damages to persons for the lost affection and society of a parent or child neither truly compensates for such loss nor justifies the social cost in attempting to do so. . . .

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* * * . . . . Plaintiffs, the nine children of Patricia Borer, allege that on March 21, 1972, the cover on a lighting fixture at the American Airlines Terminal at Kennedy Airport fell and struck Patricia. Plaintiffs further assert that as a result of the physical injuries sustained by Patricia, each of them has been 'deprived of the services, society, companionship, affection, tutelage, direction, guidance, instruction and aid in personality development, all with its accompanying psychological, educational and emotional detriment, by reason of Patricia Borer being unable to carry on her usual duties of a mother.' The complaint sets forth causes of action based upon negligence, breach of warranty, and manufacture of a defective product; it names as defendants American Airlines, two companies which manufactured and assembled the lighting fixture, and various fictitious defendants. Each plaintiff seeks damages of $100,000. Defendant American Airlines demurred to the complaint for failure to state a cause of action. (Code Civ.Proc., s 430.10, subd. (e).) The trial court sustained the demurrer without leave to amend, and entered judgment dismissing the suit as to defendant American Airlines. Plaintiffs appealed from that judgment. * * * Rodriguez . . .does not compel the conclusion that foreseeable injury to a legally recognized relationship necessarily postulates a cause of action; instead it clearly warns that social policy must at some point intervene to delimit liability. Patricia Borer, for example, foreseeably has not only a husband (who has a cause of action under Rodriguez) and the children who sue here, but also parents whose right of action depends upon our decision in the companion case of Baxter v. Superior Court; foreseeably, likewise, she has brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of Patricia's consortium; all agree that somewhere a line must be drawn. As stated by Judge Breitel in Tobin v. Grossman (1969) 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424; “Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” The decision whether to limit liability for loss of consortium by denying a cause of action in the parent-child context, or to permit that action but deny

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any claim based upon more remote relationships, is thus a question of policy. As explained by Justice Fleming in Suter v. Leonard (1975) 45 Cal.App.3d 744, 746, 120 Cal.Rptr. 110, 111: “...[N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, s 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.” In the first instance, strong policy reasons argue against extension of liability to loss of consortium of the parent-child relationship. Loss of consortium is an intangible, nonpecuniary loss; monetary compensation will not enable plaintiffs to regain the companionship and guidance of a mother; it will simply establish a fund so that upon reaching adulthood, when plaintiffs will be less in need of maternal guidance, they will be unusually wealthy men and women. To say that plaintiffs have been “compensated” for their loss is superficial; in reality they have suffered a loss for which they can never be compensated; they have obtained, instead, a future benefit essentially unrelated to that loss. We cannot ignore the social burden of providing damages for loss of parental consortium merely because the money to pay such awards comes initially from the “negligent” defendant or his insurer. Realistically the burden of payment of awards for loss of consortium must be borne by the public generally in increased insurance premiums or, otherwise, in the enhanced danger that accrues from the greater number of people who may choose to go without any insurance. We must also take into account the cost of administration of a system to determine and pay consortium awards; since virtually every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her children, the expense of settling or litigating such claims would be sizable. Plaintiffs point out that courts have permitted recovery of monetary damages for intangible loss in allowing awards for pain and suffering in negligence cases and in sanctioning recovery for loss of marital consortium. The question before us in this case, however, pivots on whether we should recognize a wholly new cause of action, unsupported by statute or precedent; in this context the inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, constitutes a strong reason for refusing to recognize the asserted claim. To avoid misunderstanding, we point out that our decision to refuse to recognize a cause of action

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for parental consortium does not remotely suggest the rejection of recovery for intangible loss; each claim must be judged on its own merits, and in many cases the involved statutes, precedents, or policy will induce acceptance of the asserted cause of action. A second reason for rejecting a cause of action for loss of parental consortium is that, because of its intangible character, damages for such a loss are very difficult to measure. Plaintiffs here have prayed for $100,000 each; yet by what standard could we determine that an award of $10,000 was inadequate, or one of $500,000 excessive? Difficulty in defining and quantifying damages leads in turn to risk of double recovery: to ask the jury, even under carefully drafted instructions, to distinguish the loss to the mother from her inability to care for her children from the loss to the children from the mother's inability to care for them may be asking too much. Thus as observed by the New Jersey Supreme Court in Russell v. Salem Transportation Co. (1972) 61 N.J. 502, 507, 295 A.2d 862, 864: “The asserted social need for the disputed cause of action (a child's action for loss of parental consortium) may well be qualified, at least in terms of the family as an economic unit, by the practical consideration recognized by many of the cases on the point that reflection of the consequential disadvantages to children of injured parents is frequently found in jury awards to the parents on their own claims under existing law and practice.” * * * Rodriguez, then, holds no more than that in the context of a spousal relationship, the policy arguments against liability do not suffice to justify a holding denying a cause of action. Plaintiffs contend, however, that no adequate ground exists to distinguish a cause of action for loss of spousal consortium from one for loss of parental consortium. We reject the contention for three reasons. First, as Rodriguez pointed out, the spousal action for loss of consortium rests in large part on the “impairment or destruction of the sexual life of the couple.” (12 Cal.3d 382, 405, 115 Cal.Rptr. 765, 780, 525 P.2d 669, 684.) No similar element of damage appears in a child's suit for loss of consortium. Second, actions by children for loss of parental consortium create problems of multiplication of actions and damages not present in the spousal context. As pointed out by the New Jersey Supreme Court in Russell v. Salem Transportation Co., supra, 295 A.2d 862, 864:

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If the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse's demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single accident might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.

The instant case illustrates the point. Patricia Borer has nine children, each of whom would possess his own independent right of action for loss of consortium. Even in the context of a consolidated action, the assertion of nine independent causes of action for the children in addition to the father's claim for loss of consortium and the mother's suit for ordinary tort damages, demonstrates the extent to which recognition of plaintiffs' asserted cause of action will multiply the tort liability of the defendant. Finally, the proposition that a spouse has a cause of action for loss of consortium, but that a child does not, finds overwhelming approval in the decisions of other jurisdictions. Over 30 states, a clear majority of those who have decided the question, now permit a Spousal suit for loss of consortium. No state permits a child to sue for loss of parental consortium. That claim has been presented, at latest count, to 18 jurisdictions, and rejected by all of them.

We reject, finally, plaintiffs' claim that denial of a cause of action for loss of parental consortium is inconsistent with the principles of tort law laid down in prior decisions of this court. . . . Plaintiffs place particular emphasis on Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, which upheld a cause of action for injuries flowing from a mother's emotional trauma in witnessing the death of her child. We suggested that the cause of action should be sustained whenever the injury was

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“reasonably foreseeable” (p. 741, 69 Cal.Rptr. 72, 441 P.2d 912), and that one factor to be considered was 'whether plaintiff and the victim were closely related.' (Ibid.) Plaintiffs urge that we follow that paradigm for decision of the instant case. In Dillon, however, we carefully limited our ruling to a case in which the plaintiff suffered physical injury. (68 Cal.2d at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.) Subsequent decisions, interpreting our holding in Dillon, have refused to recognize a cause of action in a case in which the plaintiff suffered no physical injury himself as a result of witnessing the infliction of injury upon a family member. [citations omitted]. Thus Dillon and subsequent authority support our decision in this case to deny a cause of action founded upon purely intangible injury. * * * In summary, we do not doubt the reality or the magnitude of the injury suffered by plaintiffs. We are keenly aware of the need of children for the love, affection, society and guidance of their parents; any injury which diminishes the ability of a parent to meet these needs is plainly a family tragedy, harming all members of that community. We conclude, however, that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for the loss of parental consortium. The judgment is affirmed. [The companion case, Baxter v. Superior Court of Los Angeles County, the court held that a parent has no cause of action in negligence to recover damages for loss of filial consortium after severe, disabling injury to a child. The court relied on the “policy consideration” developed in the Borer opinion. Parents, under the common or statutory las of many states, can recover for loss of a child’s services and earnings. But, argued the court, such recovery should be limited to services “of the economic value” and not be expanded to include damages for “loss of affection and society.”]

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