Asbestos Alert: Kesner v. Pneumo Abex, LLC

by Low, Ball & Lynch
Contact

Employers Now Have Duty to Take-Home Exposure Plaintiffs

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.

For the full decision click here.

 

Written by:

Low, Ball & Lynch
Contact
more
less

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!