Two cases addressed whether employers or landowners owed a duty to prevent secondary exposure to asbestos. Trial and appellate courts reached varying conclusions on this issue; here, the California Supreme Court determined that while employers and premises owners had a duty to prevent asbestos exposure carried home on the bodies and clothing of on-site workers, this duty extended only to members of a worker’s household.
In the first case, Johnny Kesner died of peritoneal mesothelioma. His uncle George Kesner worked at Pneumo Abex; during this time Johnny spent a significant amount of time staying with his uncle. In the second case, Lynne Haver died of mesothelioma; her children filed suit alleging secondary exposure through Lynne’s first husband’s work at BNSF Railway Company. Procedurally, neither suit reached a jury. The trial court in Kesner granted Abex’s motion for nonsuit on prior California caselaw holding that property owners had no duty to protect family members of workers on its premises from secondary asbestos exposure, but the appellate court reversed. The appellate court in Haver distinguished the appellate court decision in Kesner because Kesner alleged negligence in the manufacture of brake pads, while Haver alleged premises liability.
The California supreme court addressed the issue of whether Abex or BNSF had a legal duty to prevent these alleged injuries. In doing so it reviewed California law on “duty.” While California law established a general duty for everyone to exercise reasonable care for the safety of others, in the absence of a statutory provision establishing an exception to this general rule, courts should create exceptions only where “clearly supported by public policy.”
Factors to consider in determining whether public policy weighed in favor of an exception included: “’the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’” The court further recognized that by making exceptions to the general duty of ordinary care, “we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make.” Further, the court’s task in these cases was to determine whether household exposure was categorically unforeseeable and, if not, whether allowing the possibility of liability would result in such significant social burdens that the law should not recognize such claims.
The most important factor in determining whether to create an exception was whether the injury was foreseeable; here, it was foreseeable that those who worked with or around asbestos would carry it home. Common experience dictated that dust may be carried from place to place, and 1972 regulations identified the potential health risks of asbestos traveling outside a work site. Industrial hygienists likewise recommended that employers take measures to prevent employees working with toxins from contaminating family members. The second factor — injury (in these cases, mesothelioma) — was compensable under the law. Thirdly, the closeness of connection between the defendant’s conduct and the injury suffered was strongly related to foreseeability. The touchstone of this analysis was the foreseeability of the intervening conduct — here, that workers came home with asbestos dust. This conduct was entirely foreseeable.
Although foreseeability factors weighed in favor of finding a duty, policy factors of future harm, moral blame, and availability of insurance must also be considered. Future harm was generally prevented by imposing costs of the negligent conduct upon those responsible. Here, the relevant question was whether imposing tort liability in the 1970s would have prevented future harm. Numerous regulations suggested that legislatures and agencies adopted the premise that imposing liability would do so. Regarding moral blame, this factor was difficult to assess without a factual record. However, commercial users of asbestos benefited financially and had more information regarding the hazard than employees’ households.
Regarding insurance, the defendants argued the scope of liability for take-home exposures would exceed policy limits; further, allowing tort liability for take-home exposure would dramatically increase the volume of asbestos litigation. However, this duty analysis was forward-looking, and the most relevant burden was the cost of upholding, not violating, the duty of care. No party suggested that preventing exposure was unreasonably expensive. Further, the potential for increased litigation did not clearly justify a categorical rule against liability for take-home exposures, but instead indicated a need for a limitation on the scope of duty. “Accordingly, we hold that the defendants owed the members of their employees’ households a duty of ordinary care to prevent take-home exposure and that this duty extends no further.”
It made no difference whether the plaintiffs alleged different theories of liability — premises or negligence — as the elements of these torts were essentially the same. Finally, the court distinguished these two cases from those cited by defendants from other jurisdictions finding no duty. The holding in this case was consistent with courts that have adopted a general principle of tort liability analogous to that found in California statutory law.