In the consolidated matters of Kesner and Havner, the defendants petitioned the California Supreme Court to find there is no duty on employers to protect against take-home exposures experienced by those who are neither employees nor visitors to the employer’s premises; including that of an employee’s spouse or family member.
In the Havner matter, the plaintiff filed a wrongful death action against defendant BNSF Railway Company, alleging claims for wrongful death based on theories of negligence and premises liability due to the plaintiff’s take-home asbestos exposure from performing laundry for her husband, an employee for BNSF. The trial court sustained BNSF’s demurrer and held that a property owner has no duty to protect family members of any worker on the defendant’s premises from secondary exposure from asbestos encompasses the situation here when the defendant is the premises owner and the decedent was a family member of the defendant’s employee. In a published opinion, a divided panel of Division Five of the Second Appellate District affirmed the resulting judgment in favor of BNSF.
A few weeks before the decision in Havner, the Kesner court issued its published decision on “whether an employer owed a duty to protect a family member of its employee from exposure to asbestos arising out of the employer’s use of asbestos in its business. Contrary to the decision in Havner, the Kesner court held that while the duty of care does not extend to every person who comes into contact with an employer’s worker, that duty does run at least to member of the employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing.
The defendants asserted that the Supreme Court may order review of a Court of Appeal decision when necessary to secure uniformity of decision to settle an important question of law. [Citation Omitted] and that both grounds are implicated by the Court of Appeal’s decision in the Havner case compared to that of Kesner. In support of their further contentions that California law does not impose a duty in take-home exposure cases, defendants argue the following: (i) whether to impose a duty is a question of public policy that requires analysis of multiple factors including that of the relationship between the parties; (ii) other jurisdictions that that rejected take-home liability have considered the same policy factors that California courts consider; (iii) prior California decisions have concluded that imposing this duty would be bad public policy creating unbounded liability to an expansive pool of plaintiffs; and (iv) the proximate cause doctrine also weigh against liability for take-home exposures.
The plaintiff’s responded with their arguments that a fundamental duty of care does exist. The plaintiffs emphasized that California law has long recognized that a property owner’s duty of care is not limited to injuries on the property, but extends to persons injured off the property by the owner’s negligent use, control and/or maintenance of the property. Further, the plaintiffs relied on prior California decisions such as Cabral, which concludes “the question is not whether a new duty should be created, but whether an exception to the California law under Civil Code Sec. 1714(a) is proper only when foreseeability and policy considerations justify a categorical no-duty rule.”
Parties in the consolidated matters of Kesner and Havner argued this issue before the California Supreme Court on September 7 and September 8. We will continue to follow this issue and report on the court’s decision.