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California Supreme Court:
Employer Has No Duty to Employee’s Spouse Over COVID
Opinion Is in Response to Ninth Circuit’s Query; High Court Says Company That Allegedly Failed to Shield
Workers From Infection Cannot Be Held Liable to Their Family Members to Whom They Transmit Disease
By a MetNews Staff Writer
A woman whose husband transmitted the COVID-19 virus to her, causing hospitalization of her for several weeks with a connection to a respirator being needed at one point to keep her alive, has no cause of action against the husband’s employer for creating a peril by failing to adhere to requirements of a county health order, the California Supreme Court said yesterday in a unanimous opinion.
Non-liability of the employer is predicated on public policy concerns, and not on the basis of the exclusive remedy provisions of the Workers Compensation Act, Justice Carol Corrigan set forth in an opinion in response questions posed by the Ninth U.S. Circuit Court of Appeals. She wrote:
“(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer.
“(2) An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.”
Ninth Circuit Order
The questions were certified to the California Supreme Court on April 21, 2022, by an order signed by Judge M. Margaret McKeown and Senior Judges J. Clifford Wallace and Sidney R. Thomas.
The order notes that subsequent to the District Court’s dismissal of the action brought by Corby and Robert Kuciemba against Victory Woodworks, Inc., the California Court of Appeal, in See’s Candies, Inc. v. Superior Court, did decide that the derivative injury rule is not applicable. The District Court was of a contrary view.
The decision in See’s Candies (from this district’s Div. One) is “instructive,” the order says, but “does not eliminate the need for clear guidance from California’s highest court.”
It observes that “no controlling precedent resolves whether Victory owed Mrs. Kuciemba a duty of care.”
District Court’s Decision
Using standard language in certification orders, the judges said that “[t]he answers given by the California Supreme Court will dispose of this appeal currently pending before the Ninth Circuit.” That means an affirmance of the May 10, 2021 dismissal of the action, without leave to amend, by District Court Judge Maxine M. Chesney of the Northern District of California, who found:
“1. To the extent plaintiffs’ claims are based on allegations that Corby Kuciemba contracted COVID-19 ‘through direct contact with’ Robert Kuciemba…, such claims are barred by the exclusive remedy provisions of California’s workers’ compensation statutes and, thus, are subject to dismissal….
“2. To the extent plaintiffs’ claims are based on allegations that Corby Kuciemba contracted COVID-19 ‘indirectly through fomites such as [Robert Kuciemba’s] clothing’…, such claims are subject to dismissal for failure to plead a plausible claim.
“3. To the extent the above-described claims are neither barred by statute nor deemed insufficiently pleaded, such claims are subject to dismissal for the reason that defendants duty to provide a safe workplace to its employees does not extend to nonemployees who, like Corby Kuciemba, contract a viral infection away from those premises.”
(The theory as to “fomites” (inanimate objects that carry an infectious disease) was not the subject of a Ninth Circuit query.)
Corrigan’s Opinion
Corrigan said that the derivative injury rule would apply only if the harm to Corby Kuciemba was necessarily dependent on Robert Kuciemba having incurred an injury. Although he was himself hospitalized for COVID-19, the justice pointed to the possibility that one transmitting a disease is not personally affected.
“As plaintiffs point out, it does not matter for purposes of Corby’s claim whether Robert himself developed COVID-19 or suffered any cognizable injury from his exposure to the virus,” she wrote. “Corby’s negligence claim is not legally dependent on any actual injury to Robert.”
She said that “a mere causal link between a third party’s personal injury and an employee’s injury is not sufficient,” without more, “to bring the third party’s claim within the scope of the derivative injury rule.”
Examples of situations where the rule does apply, Corrigan said, “include heirs’ claims for an employee’s wrongful death…, a spouse’s claim for loss of consortium…, and a spouse’s claim for negligent infliction of emotional distress caused by witnessing an employee’s injuries”—where the claim necessarily stems from an injury to the employee that is subject to the exclusive remedy provisions.
Public Policy
The Kuciembas—the wife suing for her suffering from the virus and the husband seeking damages for loss of consortium—alleged that the employer was negligent in bringing workers over from another worksite without screening then for infection or taking other precautions. Corrigan said that the foreseeability of harm to employees’ family members coupled with the wrongfulness of violating San Francisco’s emergency health orders militated in favor of liability, but that these factors were outweighed by countervailing policy considerations.
She pointed out that “there is only so much an employer can do” to protect against a virus and there is the “possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down, or to impose stringent workplace restrictions that significantly slow the pace of work” adding:
“The economic impact of such changes could be substantial and is difficult to forecast. For businesses regarded as essential and projects that serve the social welfare, slowed operations or shutdowns could be particularly detrimental.”
Over-Burdening Courts
But Corrigan’s main concern was that the “floodgates” would be opened to litigation. She elaborated:
“[T]he potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community….Courts would have to manage a very large number of suits, and variations in individual exposure history and precautions against the virus would likely make it difficult, if not impossible, for the cases to be grouped into collective or class actions. Fact-specific disputes could also make these cases complex and time-consuming to litigate. For example, a motion challenging proximate causation based on alternative sources of exposure could not be brought, or resolved, until after the case had proceeded through discovery. Expert testimony on causation might be required, making resolution on summary judgment difficult or impossible. Similarly, whether an employer breached a duty of care would likely present highly fact-specific issues that could not be resolved without extensive discovery or witness testimony. The burden on the courts posed by a flood of complex cases that cannot be resolved in the early stages of litigation would be daunting.”
Civil Code §1714(a) provides, in part, that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” Corrigan declared that “the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large counsels in favor of an exception to the general rule” contained in that section.
The case is Kuciemba v. Victory Woodworks, 2023 S.O.S. 2223.
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