On December 1, 2016, the Supreme Court of California held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos in their businesses includes a duty to take reasonable care to prevent secondary (take-home) asbestos exposure to members of a worker’s household. Kesner v. Superior Court (S219534) and Haver v. BNSF Railway Co. (S219919), consolidated for review. This ruling allows suits against those who have owned or operated asbestos-containing premises in an era when the number of solvent asbestos defendants is diminishing. It disapproves two California Courts of Appeal cases – Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, Oddone v. Superior Court (2009) 179 Cal.App.4th 813 – that held that premises owners and employers did not owe a duty of care to household members for take-home exposure to asbestos and other toxic chemicals.  

Associate Justice Goodwin Liu, writing for the seven-member panel, stated the central holding as follows: “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. 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 the regularity and intensity of contact that occurs in a worker‘s home, it does not extend beyond this circumscribed category of potential plaintiffs.”

In Kesner, the plaintiff alleged his mesothelioma was caused by exposure to asbestos dust carried home on his uncle’s work clothes. The uncle worked at a brake manufacturing plant where he was allegedly exposed to asbestos fibers released in the manufacture of brake shoes. According to the uncle, the plaintiff spent an average of three nights per week at the uncle’s home for about six years and would sometimes sleep near and roughhouse with the uncle when the uncle was wearing his work clothes. In Haver, the wife of a former railway employee alleged her mesothelioma was caused by exposure to asbestos brought home on her husband’s work clothes. The husband worked as a fireman and hostler for the railway company in the 1970s and was allegedly exposed to asbestos from pipe insulation and other products on the premises.

In determining whether the employer and premises owner owed a duty of care, the court applied the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, recognizing that the “most important” factor to consider in duty analysis is whether the injury was foreseeable. The court held that it was foreseeable that people who work with or around asbestos may carry asbestos fibers home and thereby expose household members. It noted that a  “[a] reasonably thoughtful” industrial user of asbestos during the relevant time period (the mid-1970s) would account for the “common experience and knowledge” and recognized “general risk” that airborne asbestos fibers could become attached to an employee’s clothing or person, be carried home and then come into contact with household members. The court specifically cited OSHA federal regulations in the early 1970s that identified the potential hazards of secondary asbestos exposure.  

The court rejected defendants’ claims that take-home exposure lacks the required closeness of connection between plaintiff and defendant and that extending the duty of care to household members was contrary to Rowland’s policy considerations of moral blame, preventing future harm, burden, and availability of insurance. The court did not consider an employee’s return home from work an unusual occurrence, but a “baseline assumption that can be made about employees’ behavior,” and found that “preventing injuries to workers’ household members due to asbestos exposure does not impose a greater burden than preventing exposure and injury to the workers themselves.”

The court made clear that “a finding of duty is not a finding of liability,” and thus did not decide whether the Kesner and Haver plaintiffs could meet their burden of demonstrating breach of duty (e.g., whether the Kesner plaintiff was a member of his uncle’s household) and proximate causation or whether the defendants’ asserted defenses applied. Defendants may assert defenses and submit contrary evidence on each element. In lieu

The court declined to follow what defendants characterized as “a growing majority of courts” that have rejected a duty of ordinary care to prevent take home exposure to asbestos. It distinguished the cited out-of-state precedents as involving no actual or reasonably foreseeable knowledge of the dangers of bystander exposure or as turning on the existence or legal significance of a prior relationship that is irrelevant and inapplicable to California duty analysis.  

 © 2016 Perkins Coie LLP