Asbestos Alert: Employer Has No Duty To Protect Family Members Of An Employee From Secondary “Take Home” Exposure To Asbestos


Asbestos Alert!™
[author: Thomas J. LoSavio]

Campbell v. Ford, California Court of Appeal # B221322
Second Appellate District, Division 7, 2012 WL 1820919 (May 21, 2012)

Family members of persons who have worked with asbestos frequently claim that the worker brought home asbestos (whether on his person, his clothes, his tools or otherwise) which caused asbestos disease in the family member and, therefore, seek to hold the employer liable for the damages caused. This case holds that an employer has no duty to protect family members of employees from such exposures because, after balancing the social benefit of imposing such a duty against the social cost of imposing a duty, the benefit is outweighed by the undesirable consequences of allowing potential liability for a potentially limitless pool of plaintiffs.

Plaintiff Eileen Horner was diagnosed with mesothelioma. A few months later, she filed a complaint asserting a premises liability cause of action against Ford Motor Company, alleging that her father and brother had worked as insulators at job sites including a Ford plaint in New Jersey. As a result, she alleged, they were exposed to asbestos-containing products which caused their clothing, bodies, vehicles and tools to be contaminated with great quantities of respirable asbestos fibers, which fibers she then breathed because of her direct and indirect contact with her father and brother as well as their clothing and other belongings. She alleged that it was this asbestos exposure that caused her mesothelioma.

In the mid-1940s Ford contracted for the construction of a new assembly plant in New Jersey, including asbestos insulation work on pipes, ducts and oven spray booths used for drying freshly painted cars. Ford knew asbestos was being installed on its premises; knew of contracts between the general contractor and the subcontractor who employed Horner’s relatives, and knew these contracts specifically referenced a wage agreement negotiated with the Asbestos Workers Union and Ford received copies of these agreements. A Ford employee regularly checked on the progress of the asbestos work. Between 1947 and 1948, Horner’s father worked at the plant for about 6 months, and her brother worked there for about 1 year.

After a jury trial in which Ford was found responsible for 5% of the plaintiffs $800,000 in damages, Ford appealed. While noting that the general rule in California (embodied in Civ. Code §1714(a)) is that everyone is responsible 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, the court also noted that there are other considerations which, when balanced together, may justify a departure from this fundamental principle, as enunciated by the Supreme Court in Rowland v Christian. Those other factors include: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

The court identified the issue before it as follows: “In our view, the issue before us is whether an employer has a duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business.” The court’s review of the Rowland factors led it to the conclusion that Ford owed Horner no duty of care. While Horner sought to hold Ford liable for the management of its premises, the court noted that it was undisputed that Horner never set foot on those premises; rather, she alleged her father and brother brought asbestos dust home on their clothing after working on Ford’s property. The Court concluded that, even if it was foreseeable to Ford that its employees could be exposed to asbestos dust as a result of the work performed on its premises, the closeness of the connection between Ford’s conduct in having the work performed, and the injury suffered by an employee’s family member off the premises, was far more attenuated. The Court noted that the element of a legal duty of care generally acts to limit the otherwise potentially infinite liability that would otherwise flow from every negligent act. Here, even assuming that a property owner can reasonably be expected to foresee the risk of latent disease to employees’ family members secondarily exposed to asbestos used on its premises, the court concluded that strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure.

When measuring the extent of the burden to the defendant and the consequences to the community, the court noted that these factors weighed heavily against Horner. The principal difficulty with these factors is that it is hard to draw the line between those nonemployee persons to whom a duty is owed and those non-employee persons to whom no duty is owed. Including “all family members” into the former category would be too broad, as not all family members will be in constant and personal contact with the employee. Limiting the class to spouses would be at once too narrow and too broad, as others may be in contact with the employee and spouses may not invariably be in contact with the employee. Limiting the class to those persons who have frequent and personal contact with employees leaves at large the question what “frequent” and “personal” really means. This is only a sampling of the problem. Moreover, in a case such as Horner’s, where the claim is that the laundering of the worker’s clothing is the primary source of asbestos exposure, the class of secondarily exposed potential plaintiffs is far greater, including fellow commuters, those performing laundry services and more. The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is the cost of insuring against liability of unknown but potentially massive dimension. Ultimately such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to the community may be considerable.

The court noted that cases from other jurisdictions that have considered the matter have generally split into two categories: (1) those focusing on the foreseeability of the harm to the plaintiff resulting from the employer’s failure to take protective measures (and finding a duty) and (2) those that focus on the absence of a relationship between the employer and household member among other policy concerns. The courts that have rejected a new duty rule for premises owners have recognized that tort law must draw a line between the competing policy considerations of providing a remedy to everyone who is injured and of extending tort liability, almost without limit.

COMMENT: Because the Court of Appeal opinion addresses a matter of pure law and pure public policy, it is extremely likely that, sooner or later, the question will be presented to the California Supreme Court for its definitive interpretation.

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Low, Ball & Lynch’s Environmental and Toxic Torts Team has been successfully representing defendants in asbestos-related litigation for over 25 years. The Environmental and Toxic Torts Team also handles cases involving chemical spills and toxicity, lead, silica, and Proposition 65.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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