Issue By: Guy W. Stilson
Kesner v. Pneumo Abex, LLC
Supreme Court of California (December 1, 2016)
We first reported on this case on May 14, 2014, when the Court of Appeal ruled. The case was further appealed to the California Supreme Court, which combined it with another case (Haver v. BNSF Railway Co.) which presented a similar issue. In a unanimous opinion, the Supreme Court held:
Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. Importantly, we hold that this duty extends only to members of a worker’s household. Because the duty is premised on the foreseeability of both regularity and intensity of contact that occurs in a worker’s home, it does not extend beyond this circumscribed category of potential plaintiffs.
Decedent Johnny Blaine Kesner, Jr. spent an average of three nights each week at the home of his uncle, George Kesner, from 1973 to 1979. George worked at Abex, where he was exposed to asbestos released in the manufacture of brake shoes. Asbestos fibers came home with him on his person and Johnny was exposed. Johnny developed mesothelioma and died. The Kesner claim was based on employer negligence. Abex moved for and was granted a nonsuit based on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, a case which held that the take-home exposure theory was not viable.
Decedent Lynne Haver was married to a man who, from 1972 to 1974, was exposed to pipe insulation and other products at his place of work. Lynne Haver developed mesothelioma and died. The Haver claim was based on premises liability. The defendant demurred based on Campbell and the demurrer was sustained.
The Supreme Court reversed both decisions and overruled Campbell.
The Supreme Court found: “A reasonably thoughtful person making industrial use of asbestos during the time periods at issue in this case (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.” Thus, the Supreme Court determined that take-home exposure was foreseeable, at least as of 1972. The court’s opinion provides several pages of information regarding the enactment in 1952 of U.S. Department of Labor standards for federal contractors, a 1934 recommendation from the International Labour Office’s Standard Code of Industrial Hygiene, and the enactment of OSHA in 1972, all of which addressed the issue of preventing worker’s family members from being experiencing take-home exposure. The court also noted, “as early as 1965, scholarly journals documented fatal cases of mesothelioma where patients’ only exposure was through living with an asbestos worker.” The court held it did not matter whether the plaintiff’s legal theory was one of negligence or premises liability because take-home exposure liability is viable under either theory.
The court did not say that either the Kesner or Haver plaintiffs are necessarily entitled to a damages award, only that they are entitled to move forward to trial. The court characterized its ruling as simply rejecting a “categorical” rule precluding take-home exposure liability, and pointed out that the plaintiffs still must prove the Rutherford factors (duration and proximity, etc. of exposure) and show that any exposure attributable to the defendant is substantial before liability may attach.
Comment and Evaluation
This case is a significant blow to asbestos defendants. The idea that it is foreseeable to an employer that a worker’s family member could develop a disease from exposure to asbestos brought home on its worker’s person has been the subject of heated debate. That debate has now been resolved in California, and the plaintiffs have prevailed. Defendants may still want to pursue a “lack of foreseeability” defense where the take-home exposures ended before 1972, but the Supreme Court’s reference to earlier papers and recommendations means that convincing a court that the exposure or resulting disease was not foreseeable will be an uphill battle, with the slope getting increasingly steeper as the take-home exposures near the 1970s.
We had seen a substantial increase in take-home exposure cases before Campbell. Based on Campbell, defendants had won a significant number of summary judgment and other dispositive motions in take-home exposure cases. When the Supreme Court agreed to review Kesner and Haver, lower courts started putting those motions on hold pending this opinion. Now that the Supreme Court has decided this issue in favor of plaintiffs, we expect to see more cases alleging take-home exposure in the near future.
For the full decision see: Kesner v. Pneumo Abex, LLC