California Declares Duty in “Take-Home” Exposure Cases

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.