California Supreme Court holds duty owed to household members in asbestos take-home cases

December 08, 2016

Asbestos Litigation Alert

Author(s): Ethan E. Trull, Michael J. Philippi, Christina E. Kurow

The California Supreme Court recently determined that employers and premises owners owe a duty of care to members of employees’ households to prevent secondary or take-home exposure to asbestos. This alert discusses this decision and its implications.

The California Supreme Court recently determined that employers and premises owners owe a duty of care to members of employees’ households to prevent secondary or take-home exposure to asbestos. On December 1, 2016, the high court of California issued an opinion deciding two cases, Kesner v. Superior Court and Haver v. BNSF Railway Co., after the appellate courts reached conflicting conclusions on the issue of whether a duty of care existed. See Kesner v. Superior Court, S219534, 2016 WL 7010174 (Cal. Dec. 1, 2016).

In Kesner, the plaintiff brought claims against numerous defendants alleging that he was exposed to asbestos when he stayed overnight at his uncle’s house while his uncle worked at Pneumo Abex, LLC (“Abex”) manufacturing brake shoes. Id. at *1. According to plaintiff’s uncle, plaintiff spent an average of three nights per week at his home from 1973 to 1979. Id. Plaintiff alleges that during these visits he was exposed to asbestos dust from his uncle’s clothing after his uncle returned from the Abex plant, causing him to contract mesothelioma. Id.

Abex moved for nonsuit at the beginning of trial, arguing that based on California precedent, specifically, Campbell v. Ford Motor Co., 206 Cal.App.4th 15, 34 (2012), “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. The trial court granted Abex’s motion, finding Abex did not owe a duty to prevent plaintiff’s exposure to asbestos. Id. The court of appeals reversed, finding Campbell inapplicable because it involved a theory of premises liability, whereas, Kesner involved a negligence claim associated with the manufacturing of brake linings.[1]

In Haver, decedent’s children filed wrongful death and survival actions alleging that their mother was exposed to asbestos by way of her former husband who was employed as a fireman and hostler for BNSF’s predecessor (“BNSF”). Id. at *2. Decedent’s husband was allegedly exposed to asbestos from working with pipe insulation and various other products while employed at BNSF from 1972 to 1974. Id. Plaintiffs alleged that decedent’s former husband carried asbestos fibers home with him on his body and clothing, exposing his wife to asbestos. Id.

BNSF demurred to the complaint, also relying on Campbell, claiming that premises owners do not owe a duty of care to household members. Id. The trial court sustained the demurrer and the court of appeals affirmed, finding Campbell properly rejected the notion that a duty extends to premises owners in take-home cases. Id. Further, the appellate court distinguished the case from Kesner, reasoning Kesner was a case arising out of negligence in the manufacturing of brake pads—not a premises liability case, which was at issue in Campbell.[2] Id.

Last week, the California Supreme Court resolved this conflict between the appellate courts and concluded that an employer has a duty to members of an employee’s household to prevent take-home asbestos exposure under a premises liability and negligence theory. Id. at *16. In finding a duty existed, the court focused on the foreseeability of the injury and concluded that it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them, exposing members of their household to asbestos. Id. at *4. The court reasoned that “[a] reasonably thoughtful person making industrial use of asbestos during the time periods at issue . . . (i.e., the mid-1970s) would take into account the possibility that asbestos fibers could become attached to an employee’s clothing or person, travel to that employee’s home, and thereby reach other persons who lived in the home.” Id. Also relevant to the court’s analysis was the existence of Occupational Safety and Health Administration (“OSHA”) regulations in 1972, which set a ceiling for employee exposure to airborne asbestos, and in the court’s view, identified the potential health risks of asbestos travelling outside of the worksite. Id.

Recognizing that the cases at hand were negligence and premises liability actions, the court determined that this distinction was irrelevant, reasoning that proving a negligence and premises liability claim entails establishing the same elements: a legal duty of care, breach of the duty, and proximate cause resulting in injury. Id. at *12. While the court categorically ruled that a duty of care extended to household members, the court acknowledged that this duty comes with limitations.

For instance, the court confirmed that this duty only extended to “household members” and noted that “any duty rule will necessarily exclude some individuals who, as a causal matter, were harmed by the conduct of potential defendants” such as “a regular carpool companion.” Id. at *9-10. The court also cautioned that “a finding of duty is not a finding of liability.” Id. at *11. To prevail, a plaintiff must prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff's injury. Id. The court further clarified that defendants may argue that in light of other sources of asbestos to which plaintiffs may have been exposed, one cannot say with sufficient certainty that the fibers carried home were a “substantial factor” in bringing about plaintiffs’ injuries. Id.

The Kesner/Haver decision, although framed as a limited ruling, has the potential to make a much larger impact. The Court held that the duty to prevent take-home exposures extends “only to members of a worker’s household.” However, “household” was defined to include all “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 did not elaborate on the various factors embedded in that definition, and how far the “worker’s household” extends will be fertile ground for litigation going forward. In addition, in disapproving the Oddone decision, which involved alleged take-home exposure to other chemicals, the Court signalled that it was making no attempt to constrain the duty to prevent take-home exposure to asbestos. An expansion of take-home exposure claims based on other toxins is likely to follow.

Courts throughout the country are divided on whether a duty may be imposed for take-home asbestos exposure. The majority of courts have held that no such duty exists. Courts following the majority view have focused on the lack of relationship between the plaintiff and defendant and have held parties must have a prior relationship for a duty to exist. States adhering to the majority view include: Delaware, Georgia, Illinois, Iowa, Kansas, Kentucky, Maryland, Michigan, New York, Ohio, Oklahoma, Pennsylvania, and Texas.[3]

On the other hand, courts following the minority view focus on the foreseeability analysis, as the court did in Kesner. In addition to California, states recognizing a duty include: Louisiana, New Jersey, Tennessee, and Washington.[4]

While the recent California Supreme Court ruling may be worrisome to defendants, California defendants may still successfully negate the elements of breach and causation, despite a court finding a duty of care existed. Duty is only one element of the equation and proving causation will remain difficult for plaintiffs.

  1. See Kesner v. Superior Court, 226 Cal. App. 4th 251, 253 (2014). After the court of appeals issued judgment in this case, the plaintiff passed away. [Back to reference]
  2. See Haver v. BNSF Ry. Co., 226 Cal. App. 4th 1104, 1106 (2014). [Back to reference]
  3. See Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009) (employer owed no duty to employee's wife); Gillen v. Boeing Co., 40 F. Supp. 3d 534 (E.D. Pa. 2014) (employer owed no duty to wife); CSX Transp., Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208 (2005) (employer owed no duty to non-employees); Nelson v. Aurora Equip. Co., 391 Ill. App. 3d 1036 (2d Dist. 2009) (employer owed no premises liability duties to wife and mother); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Iowa 2009) (power plant owed no general duty of reasonable care to wife of independent contractor's employee); Kan. Stat. Ann. § 60-4905(a) (no premises owner shall be liable for any injury to any individual resulting from asbestos exposure unless such exposure occurred while the individual was at or near the premises of the owner’s property); Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) (under Kentucky law, employer owed no duty to employee’s son); Georgia Pac., LLC v. Farrar, 432 Md. 523, 69 A.3d 1028 (2013) (manufacturer owed no duty to warn plaintiff of dangers of household exposure to asbestos); In re Certified Question from Fourteenth Dist. Court of Appeals of Texas, 479 Mich. 498 (2007) (property owner did not owe duty to family member); In re New York City Asbestos Litig., 5 N.Y.3d 486 (2005) (employer did not have duty to protect employee's wife from exposure to asbestos dust); Ohio Code Ann. § 2307.941(bars asbestos claims from exposure that does not occur at the premises owner’s property); Rohrbaugh v. Owens-Corning Fiberglas Corp., 965 F.2d 844 (10th Cir. 1992) (under Oklahoma law, wife of insulator who worked with asbestos products was not “foreseeable user,” whom asbestos manufacturers had any duty to warn); Gillen v. Boeing Co., 40 F. Supp. 3d 534 (E.D. Pa. 2014) (employer owed no duty to wife); Nelson v. Aurora Equip. Co., 391 Ill. App. 3d 1036 (2d Dist. 2009) (employer owed no premises liability duties to wife and mother); and Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. App. 2007) (employer did not have a legal duty toward employee’s wife). [Back to reference]
  4. See Chaisson v. Avondale Indus., Inc., 2005-1511 (La. App. 4 Cir. 12/20/06), 947 So. 2d 171 (La. Ct. App. 2006), writ denied, 2007-0411 (La. 4/5/07), 954 So. 2d 145 (employer owed a duty to pipefitter's wife); Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006) (premises owner owed a duty to spouses handling workers' unprotected work clothing); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (employer had a duty to those who came into close regular contact with its employees over an extended period of time); Arnold v. Saberhagen Holdings, Inc., 157 Wash. App. 649, 666, 240 P.3d 162, 171 (2010) (premises owner/general contractor may have a duty to warn). [Back to reference]

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

Back to top