Friday, December 2, 2016
S.C. Finds Duty to Prevent ‘Take-Home’ Asbestos Exposure
Justices Say Employer or Landowner May Be Liable to Worker’s Family Members
By KENNETH OFGANG, Staff Writer
A property owner or employer may be liable for illness suffered by someone who was exposed to asbestos as a result of contact with a household member who has worked around it, the state Supreme Court ruled yesterday.
“We hold that the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers,” Justice Goodwin H. Liu wrote for a unanimous court. “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.”
Liu said the duty extends to owners of property where asbestos has been used, “subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability.” He emphasized, however, that the duty found by the court “is premised on the foreseeability of both the regularity and intensity of contact that occurs in a worker’s home,” and thus is owed only to members of workers’ families.
The court ruled in favor of the plaintiffs, relatives of Johnny Blaine Kesner Jr. and Lynne Haver, whose cases were consolidated following conflicting rulings by Court of Appeal panels.
Kesner alleged he was exposed to dust from products made by Pneumo Abex, LLC during his many visits to his uncle, who worked for Abex for more than 30 years and in whose home Kesner was a frequent overnight guest, particularly during a six-year period in the 1970s. Kesner was diagnosed with mesothelioma in 2011 and died in 2014, after the Court of Appeal ruled in his favor.
He sued a number of defendants, including companies for which he himself had worked; the claim against Abex was the only one still pending at time of trial. The First District Court of Appeal’s Div. Three overturned a judgment in favor of Abex, which was granted a nonsuit by the trial judge.
The Court of Appeal rejected the company’s argument for a bright-line rule against liability for “take-home” exposures. Cynthia Kesner substituted into the case after her husband’s death and obtained a grant of review from the high court.
In the other case, the children of Lynne Haver, who was diagnosed with mesothelioma in March 2008 and died 11 months later, alleged that she was exposed to asbestos fibers that had adhered to the body and clothing of former husband Mike Haver when he worked for the Atchison, Topeka, and Santa Fe Railway in the 1970s. They sued successor BNSF Railway Company, but Los Angeles Superior Court Judge Richard Rico sustained the company’s demurrer.
Div. Five of this district’s Court of Appeal affirmed, finding Kesner distinguishable on the ground that Kesner alleged negligence in the manufacture of Abex products, whereas the Havers based their claim on a premises liability theory.
Liu concluded that liability for take-home exposures may be imposed under either theory.
He cited Rowland v. Christian (1968) 69 Cal.2d 108, which elucidated the factors that must be looked at to determine whether a duty will be imposed as a matter of public policy—foreseeability of harm, degree of certainty of injury, closeness of causal connection between the injury and the breach of alleged duty, the moral blameworthiness of the conduct, the extent to which imposition of duty would prevent future harm, the burden on the defendant and the community if the duty is imposed , and the cost and availability of insurance.
The justice said Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, on which the trial judges in both cases, and the Court of Appeal in Haver relied, was wrongly decided. Campbell cited the Rowland factors in concluding that Ford could not be held liable, based solely on its ownership of a plant in which an independent contractor was installing asbestos insulation, to persons who came into contact with asbestos dust carried on the clothing of persons who worked at the plant.
The decedent in that case allegedly came into contact with asbestos fibers while laundering the work clothes of her father and brother.
Liability to family members for secondary exposure, Liu reasoned, is consistent with Rowland.
“An employee’s return home at the end of the workday is not an unusual occurrence,” he wrote, adding that exposure of family members to harm “is predictable and derivative of the alleged misconduct, namely, failure to control the movement of asbestos fibers.”
Beyond foreseeability, he went on to say, imposition of duty is supported by scientific evidence and the resulting strong public policy in favor of protecting the public from asbestos exposure; the moral blame attributable to commercial interests that profited from the use of use of asbestos and had superior knowledge of, and control over, its hazards than workers and their families; and the fact that insurance was widely available at the time the plaintiffs’ decedents were exposed, “even if the availability of such policies declined along with the dramatic drop in the use of asbestos.”
The case of Kesner v. Superior Court (Pneumo Abex LLC), 16 S.O.S. 6103 was argued in the Supreme Court by Ted W. Pelletier of Kazan, McClain, Satterley & Greenwood and Michael B. Gurien of Walters Kraus & Paul for the plaintiffs, and by Lisa Perrochet of Horvitz & Levy and Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher for the defendants.
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