California Supreme Court Clarifies Employers’ Duty to Family Members in Toxic Tort Cases
The California Supreme Court has just held that premises owners and employers have a duty of care to third-party family members of their employees for asbestos exposures occurring during the course of their employment. (Kesner v. Pneumo Abex, Inc., S219534/Haver v. BNSF Railway Co., S219919
Since 2012, California’s leading case regarding take-home duty was the Second Appellate District’s decision in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15. Campbell held that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.” (Id. at 34.) Though the facts of Campbell had turned on workers employed by an independent contractor present at a property owner’s site, California trial courts have applied Campbell broadly to employees of premises owners as well as independent contractors. Kesner and BNSF both involved premises owners who allegedly exposed their employees to asbestos during the course and scope of their employment, with those employees allegedly bringing the asbestos home, injuring their family members.
The Supreme Court’s new ruling in Kesner and Haver clarifies that premises owners and employers do indeed have a duty to exercise ordinary care to third-party family members of “workers,” i.e., their own employees, on their premises. Thus, premises owners must use ordinary care to prevent asbestos from being carried on the persons and clothing of an on-site employee to members of the employee’s household at home. This duty to prevent transmission of asbestos fibers to persons who neither visit nor work at a particular site arises when it is “reasonably foreseeable” that the employee will carry asbestos fibers from the site home to their household members. Precisely what exposure is “reasonably foreseeable,” and to which “household members” this duty applies, however, is likely to be the subject of further litigation.
The Supreme Court held that this duty applies whether the plaintiff pursues a cause of action for premises liability (as in Kushner) or for ordinary negligence (as in BNSF), because the fundamental “reasonably foreseeable” analysis is the same for both theories of liability.
The Court found that the premises owners/employers in both the Kesner and Haver should have foreseen that their employees would bring asbestos fibers home to their loved ones, because by the time of the alleged exposures, the mid-1970s, the federal Occupational Safety and Health Administration (OSHA) had already published permanent regulations for employers exposing their employees to asbestos, including requirements that employers provide changing rooms for workers, and inform launderers of asbestos-contaminated work clothing. If the employers in the underlying cases took these precautions inadequately, the Court held, it was entirely foreseeable that workers would bring asbestos dust home at the end of the day, and a “reasonably thoughtful person” would ensure that proper procedures were in place to protect family members from such take-home exposure.
Whether a similar duty exists for exposures which took place prior to the establishment of workplace asbestos regulations is much more muddy. The Court mentioned the 1952 Department of Labor standards, a 1932 International Labour Office’s Standard Code of Industrial Hygiene, and 1965 scholarly journals which discuss dangers to family members of people employed in “dusty trades,” but ultimately, the holding carefully limits the employers’ duty to the specific mid-1970s exposures at issue for the Kesner and Haver plaintiffs. Given this vagueness, we anticipate further litigation in cases where workers were employed not as insulators or in a “dusty trade,” but in other trades, and where alleged exposures occurred prior to the promulgation of OSHA regulations in 1972.
Exactly to whom premises owners and employers owe this newly-confirmed duty is also likely to be the source of additional litigation, even for the Kesner plaintiffs themselves. The Court’s order defines the “household member” to which this duty applies as a person who lives with the exposed worker, and is thus “foreseeably in close and sustained contact with the worker over a significant period of time.” The Court stressed that this definition should not be limited to a specific legal or biological relationship, but instead a focus on the “regularity and intimacy of physical proximity” to the asbestos-exposed worker. Crucially, what “regularity and intimacy” is required remains a question of fact still to be determined by the lower court in Kesner, because the injured party, Johnny Kesner, was the nephew of the employee, and did not live in the employee’s household full time. Thus, the trier of fact will need to determine whether a “household member” includes a nephew who spends a few nights a week in the home.
It does appears that the holding in Campbell will survive Kesner’s ruling, notwithstanding the Court’s observation that it disapproved of Campbell to the extent that it is “inconsistent with today’s ruling.” Clearly, Campbell is distinguishable from Kesner and Haver, in that the Campbell plaintiff was an employee of an independent contractor working on the construction of a Ford plant, and was not directly employed by Ford. Thus, Ford was the quintessential “hands-off” premises owner who turned the keys over to the plaintiff’s employer at the time of the exposure. There is nothing in the Kesner ruling that would appear to prevent a premises owner defendant facing a suit by a third-party family member of an independent contractor from arguing that, because it did not have control over the working conditions created by the independent contractor, and was not subject to any duties under OSHA or other workplace rules (subject to non-delegable duties), it could not have foreseen – or prevented – a third-party injury to the independent contractor’s family member.