Issue by: Guy W. Stilson
Kesner v. Pneumo Abex, LLC
California Court of Appeal, First Appellate District (May 15, 2014) 226 Cal.App.4th 251

On May 15, 2014, the Court of Appeal answered a question which has been asked repeatedly since the Second District Court of Appeal published a decision in Campbell v. Ford Motor Co.(2012) 206 Cal.App.4th 15 (“Campbell”), which it later retracted, edited, and republished.

Campbell arose from a claim of “take-home” or “secondary” exposure: the plaintiff claimed she developed a disease from exposure to asbestos that came home on the persons of her father and brother, who worked for a contractor at a Ford facility. Ford was sued on a premises liability theory. The original Campbell decision said premises owners and employers are not liable for take-home exposure because they didn’t owe a duty to the workers’ family members. The Campbell plaintiff petitioned for rehearing, arguing that employer liability was not before the court and the statements regarding employer liability were dicta and should not have been included in the opinion. The Campbell court reissued its decision, editing out the statements about employers’ liability. Since then, there has been disagreement in the lower courts about whether employers can owe a duty to their employee’s family members. Kesner answers the question in the affirmative, finding a duty can exist.

Ford’s successful legal theory in Campbell was that under Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”), it did not owe a duty to the injured persons. Rowland is the seminal California case which sets forth criteria to be considered when there is a question as to whether a duty should be imposed under certain circumstances. Under Rowland, courts consider (1) whether the harm was a reasonably foreseeable result of the conduct to which liability may be applied; (2) the certainty that harm actually resulted from the conduct; (3) the closeness of the connection between the conduct and the injury; (4) whether the conduct is morally blameworthy; (5) the policy of preventing future harm; (6) the extent of the burden on the defendant and the consequences to the community of imposing a duty; and (7) the availability, cost and prevalence of insurance for the risk involved. The Campbell court determined theRowland factors weighed against imposing a duty. Thereafter, employers sued in take-home asbestos cases argued that Campbell either included employers or should be extended to employers because the Rowland analysis applicable to premises owners also applied to them.

Kesner was decided by the First District after the trial court granted a nonsuit at the conclusion of the plaintiffs’ presentation of evidence. The Kesner court distinguished the employer situation from the Campbell premises owner situation, finding it reasonably foreseeable that harm to third parties could occur due to a lack of precautions to control friable asbestos that may accumulate on an employee’s work clothing, and that foreseeability was the most important factor in the duty analysis. Uncertainty as to whether the take-home exposure contributed to development of a later disease was found to exist “with respect to many exposure claims, whether direct or secondary,” and did not prevent the Kesner court from finding a duty.

Kesner also found the alleged conduct to be morally blameworthy, but explicitly stated that this finding was based on the assumption – which the court was required to make on a nonsuit, where the court must accept the plaintiff’s allegations as proven if there is any evidence to support them at all – that the defendant knew of the risks relating to take-home exposure and did nothing to avoid those risks. The Kesner court also felt that imposing a duty would advance a policy of preventing harm.

The Kesner court characterized the last two Rowland factors as having been the most important to the Campbell court — the burden to the defendant/consequences to the community, and the availability of insurance – and found these factors had much less applicability to the employer situation than to the property owner situation.

Comment and Evaluation

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 is the subject of heated debate. A number of courts have stated their opinion that such causation was not foreseeable, particularly at the time of the exposures in most alleged take-home exposure cases: the 1960s and 1970s, when far less was known about the dangers of asbestos and take-home exposure than is known today.

The court stressed the importance of “extensive” contact between the person developing the illness and the person upon whose body the asbestos came home. Proof the defendant knew of the danger and took no steps to prevent the danger from being realized is also important. However, these are all questions of fact, precluding a summary judgment motion.

While Kesner and Campbell are not explicitly contradictory, there are difficulties reconciling these two decisions from two different districts. Until the Supreme Court says otherwise, the rule in California will be that take-home exposure claims may succeed against the worker’s employer but will not prevail against the premises owner.

Post Script

On June 3, 2014, the Kesner decision was effectively narrowed by the ruling in Haver v. BNSF Railway Co. Haver found an employer had no duty (and therefore no liability) under a premises liability theory, distinguishing Kesner on the basis that Kesner was brought on a product liability theory.

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