California Supreme Court Finds Duty in Take Home Exposure Cases

By and on December 5, 2016

12-5On December 1, 2016, the California Supreme Court ruled that premises owners and employers owed a duty to prevent take-home asbestos exposure to those in an employee’s household. The court declined to carve out an exception to the general duty imposed by California statute (Civ. Code, § 1714) on every person to exercise reasonable care for the safety of others. While the decision does not specifically cover take-home claims against product manufacturers, the rationale of the decision suggests that they too will be subject to take-home liability. Recognizing a duty to bystanders will expand the class of persons who may pursue employers and premises owners for asbestos exposure claims. The court found no inconsistency with its opinion and a number of other jurisdictions that have a “no duty” rule. One  distinguishing fact is that by the time exposure is alleged to have occurred in the 1970’s information and regulations regarding the dangers of take-home exposure would have been generally known to employers and premises owners, as the result of 1972 OSHA regulations and otherwise.

The court’s ruling came in two consolidated companion cases. In Kesner, plaintiff alleged he was exposed to asbestos when he spent an average of three nights per week at his uncle’s house in the 1970’s. His uncle, an employee of Pneumo Abex, LLC (“Abex”), worked in a plant where brake shoes were manufactured with asbestos fibers that were released during the manufacturing process, and it was alleged that the uncle brought the fibers home on his work clothes. Plaintiff was diagnosed with mesothelioma and he sued Abex. The Kesner appellate court reversed Abex’ nonsuit based upon prior California holding (Campbell v. Ford Motor Co.) that the employer had no duty to a bystander. In the companion case Haver, the decedent’s heirs claimed decedent was exposed to asbestos by her former husband, who was allegedly exposed to asbestos from pipe insulation and other tools while employed as a fireman and hostler in the early 1970’s. Decedent was diagnosed with mesothelioma. The Haver appellate court affirmed the trial court’s order sustaining defendant’s demurrer, relying upon Campbell and distinguishing Kesner on the ground that Kesner sounded in negligence whereas the Havers’ claims rested on a premises liability theory.

The Supreme Court held that in both instances, a reasonable employer should have known that asbestos presented risk of harm in the workplace and that it was foreseeable its employees would travel outside the workplace, particularly to their homes. “The relevant intervening conduct here – that workers returned home at the end of the day and, without adequate precautions, would bring asbestos dust home – is entirely foreseeable.” Thus, the exposure was foreseeable and duty attached.

The court did, however, limit the duty to “household” members, and not just anyone with whom a worker might come into contact (e.g. carpools, restaurant workers, or bus passengers). “We hold that an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” The court stopped short of limiting the duty to “immediate family members” and instead applied it to “household members”, an acknowledgement of bonds which may be found in non-traditional and quasi-familial living arrangements. The court also explicitly acknowledged that “… a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff’s injury and the defendant may assert defenses and submit contrary evidence on each of these elements.”

Filed under Asbestos Take-Home, California, Secondary Exposure

Will California Bar “Take-Home” Exposure Cases? California Supreme Court Grants Review

By on September 22, 2014

On August 20, 2014, the California Supreme Court granted review in two “take-home” asbestos exposure cases, Kesner v. Superior Court (2014) 226 Cal.App.4th 251, a negligence and products liability case, and Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104, a premises liability case. “Take-home” cases, aka “secondary exposure” cases, involve plaintiffs alleging exposure to a harmful substance, not from working with a product or at a site that contained the substance, but through their contact with a person (oftentimes a family member) who brought the substance home on their clothing, tools or vehicles.

The key issue in most take-home cases, which is discussed at length in the Kesner and Haver opinions, is whether the defendant employer or premises owner has a legal duty to these plaintiffs. In granting review, the California Supreme Court has an opportunity to curb the number of “take-home” cases asserted in this state.

In Kesner, the plaintiff was sometimes a guest at the home of his uncle, who was employed by defendant Abex manufacturing asbestos-containing products. Kesner held that this was sufficient to create a duty, and that an employer’s duty of care “runs at least to members of an employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing.” Kesner focused on the foreseeability of harm.

Kesner distinguished the seminal California “take-home” case of Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15,which 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.”  Kesner held a “different balance must be struck” when analyzing a negligence claim than with (as in Campbell) a premises liability claim. Kesner “did not question the conclusion in Campbell.” In essence, Kesner carved out an exception to Campbell, allowing the plaintiffs to skirt the bright-line rule by bringing take-home claims under a products liability theory, of course for cases like this or similar the use of family lawyers Melbourne can be the best option to help you in this area.

A month after the Kesner decision, the Haver court found no “take-home” duty and affirmed a demurrer in favor of defendant BNSF Railway.  The plaintiff was the son of the decedent, alleging his mother inhaled asbestos fibers from her contact with her former husband, who used to work for defendant’s predecessor. On appeal, the plaintiff argued that Campbell was improperly decided or, in the alternative, that the Kesner case compelled a different outcome.  The Haver court rejected both of plaintiff’s arguments, holding instead that “Campbell made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency … or the worker’s employment relationship with the landowner.”

As a result of the California Supreme Court’s decision to grant review, the Kesner and Haver decisions have been depublished and may not be cited in California, leaving Campbell as the law in California while the appeals are pending.  The decisions may still be cited in most jurisdictions outside California,

It should be noted that the holding in Campbell is not followed in all jurisdictions.  For example, courts in New Jersey (Olivo v. Owens-Ill., Inc. 186 N.J. 394, 404 (N.J. 2006) (premises liability)), Louisiana (Chaisson v. Avondale Industries, Inc., 947 So.2d 171(La. App. 2007) (premises liability)), and Tennessee (Satterfield v. Breeding Insulation Co. 266 S.W.3d 347, 366-367 (Tenn. 2008) (negligence)) have found that an employer or landowner has a legal duty.

But there is reason to believe that the California Supreme Court will follow Campbell’slead, which aligns with the majority of other states. States recognizing no duty in take-home exposure cases include: Delaware (Price v. E.I. DuPont De Nemours & Co., 26 A.3d 162, 170 (Del. 2011)); Georgia (CSX Transp., Inc. v. Williams, 608 S.E. 2d 208 (Ga. 2005)); Iowa (Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 699 (Iowa 2009)); Kansas (Kan. Stat. Ann. § 60-4905(a) (2012)); Maryland (Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. App. 1998)); Michigan (Miller v. Ford Motor Co. (In re Certified Question from Fourteenth District Court of Appeals of Texas), 740 N.W.2d 206, 222 (Mich. 2007)); New York (In re New York City Asbestos Litigation (Holdampf. v. A.C. & S. Inc.), 5 N.Y.3d 486 (2005)); Ohio (Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448, 453 (Ohio 2010);  R.C.2307.941); and Texas (Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. App. 2007)).  As noted in Haver, the New York and Georgia high courts ruled that finding a legal duty would “upset traditional tort law” and “result in unsound public policy.”

In Kesner, Gordon & Rees partner Don Willenburg submitted an amicus brief on behalf of two defense counsel organizations. The amicus brief argues that Campbell should control all take-home cases, and that a contrary rule (like that the Kesner court adopted) would open the door to a potentially limitless pool of plaintiffs claiming lung cancer and other diseases.

The Kesner and Haver decisions will likely generate significant amicus interest. Amicus briefs are generally filed shortly after the final reply brief of the parties, or about three-four months from now. There is no set timetable for the California Supreme Court to hear argument on or decide the matter after briefing, but we estimate a decision may issue in about 18-24 months. Gordon & Rees has extensive experience in appeals on a wide variety of legal issues and has submitted numerous amicus briefs in cases that resolved favorably for the defense.

The California Supreme Court should adopt the rule in Campbell and the majority of other jurisdictions. And, in the opinion of the author, the holding should extend to premises liability, product liability, and negligence claims to reflect a unifying legal principle that an employer or landowner – even if the employer or landowner also happens to be a manufacturer – has no legal duty to protect someone from secondary exposure who never used the product or never visited the site.

Filed under Paraoccupational Exposures, Second-Hand Exposure, Take-Home Exposure

California Declares Duty in “Take-Home” Exposure Cases

By on May 16, 2014

In Kesner v. Pneumo Abex LLC, decided May 15, 2014, the California Court of Appeal found a duty to protect against “take-home” exposure. The decision extends this duty beyond immediate family members, and is in apparent conflict with an earlier decision, Campbell v. Ford Motor Co., which ruled against any “take-home” duty. At the same time, Kesner’s effect may be limited by such factors as the decision’s attempts to distinguish Campbell and the particular procedural posture of the case.

Johnny Blaine Kesner is the nephew of an employee of a brake lining manufacturer. He claimed asbestos exposure due to intermittent visits, some long-term, with his uncle, and alleged that his uncle brought asbestos dust home. The trial court, based on Campbell, granted the manufacturer’s motion for nonsuit. The Court of Appeal reversed, because the complaint alleged the manufacturer was aware of asbestos hazards and “that Kesner’s contact with his uncle was extensive. As to such persons, the foreseeability of harm is substantial.”  Under “the standard for reviewing the sufficiency of the allegations of the complaint” on nonsuit, that was enough to send the case back for trial.

The Kesner decision may come as a surprise given the 2012 decision in Campbell, which held that a premises owner owed no duty to the family members of employees of independent contractors who worked at the premises. In Campbell, the plaintiff asserted her brother and father, insulators at the premises, had brought asbestos dust home on their clothes. She claimed she developed mesothelioma from handling and laundering these work clothes.  Campbell found no duty. (Interestingly, the decision was modified after first issued specifically to clarify that Ford was a premises owner and not the employer.)

Kesner recognized several limits to the scope of its ruling. One was “that the existence of the duty is not the same as a finding of negligence.” Another was that where “contact with an employer’s worker is only casual or incidental, the foreseeability of harm and the closeness of the connection between the defendant’s conduct and the plaintiff’s injury may be so minimal” as to find that no duty exists.

Kesner did “not question the conclusion in Campbell” and distinguished between “Ford’s passive involvement as owner of a plant in which an independent contractor was installing asbestos insulation” and the facts of Kesner, which involved a negligence claim against a “manufacturer of asbestos-containing brake linings.” Nevertheless, the apparent conflict between Kesner and Campbell suggests possible California Supreme Court review.

If the Kesner decision is not reversed or depublished, it is potentially problematic for defendants — even outside the asbestos arena. Kesner generalizes its holding from asbestos exposure to all “toxins” generally: “It may be true . . . that asbestos is already the subject of strict regulation under both federal and California law [and that liability will not likely] do anything to prevent future asbestos-related injuries. Yet, asbestos is not the only toxin to which an employer’s obligations apply. A rule of law that holds an employer responsible to avoid injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing process can be expected to prevent harm to others in the future.”

Full disclosure: Don Willenburg, leader of Gordon & Rees’s Appellate Practice Group, filed an amicus brief supporting the defense position on behalf of the Association of Defense Counsel of Northern California and Nevada.

Filed under Asbestos, Take-Home Exposure