Weekly Law Resume - March 2014: An Employer Does Not Owe a Duty of Care to its Employee’s Later-Conceived Child


Waleed Elsheref, a Minor, etc., et al., v. Applied Materials, Inc.

Court of Appeal, Sixth District (January 27, 2014)

Plaintiff Waleed Elsheref’s father, Khaled Elsheref (“Khaled”) worked as an engineer for defendant Applied Materials, Inc. (“AMI”) at its semiconductor manufacturing facility.  Khaled’s duties included work with tools containing mercury and ethylene glycol and tools emitting ionizing radiation.

AMI provided information and training regarding the chemicals.  AMI also employed industrial hygienists to assess and reduce potential hazards and nurses to provide on-site health services.  In order to get authorization for a respirator, Khaled was examined by a physician.  He also filled out a questionnaire with reproductive history questions.  An industrial hygiene assessment was conducted during Khaled’s employment due to a mercury leak concern.  It was concluded that no levels of mercury were detected in the breathing zone.

During his employment at AMI, Khaled’s wife, Zainab Musbah (“Zainab”) conceived and gave birth to plaintiff, who was born with numerous birth defects.  Plaintiff’s first amended complaint alleged that his birth defects were caused by his father’s exposure to toxic chemicals at AMI.  Plaintiff alleged the following causes of action:  negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation, premises liability, and strict products liability.  Plaintiff’s mother also asserted claims for negligence and intentional infliction of emotional distress.

AMI moved for summary adjudication, arguing that it did not owe a duty to plaintiff because, under California law, only medical professionals and manufacturers of reproduction-related products have been held to owe a duty to later-conceived children.  The trial court agreed with AMI and granted its motion for summary adjudication.  Plaintiffs appealed.

The Court of Appeal for the Sixth District concluded that AMI did not owe a duty to plaintiff.  It rejected AMI’s limited preconception duty argument.  The Court said the existence of a duty is determined on a case-by case basis by balancing the “Rowland factors,” which 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 and 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.’”  Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn.5, quoting Rowland v. Christian (1968) 69 Cal.2d 108 at p. 113.

Although some factors weighed in favor of finding a duty, the Court of Appeal found that there was not a “close” connection between AMI’s conduct and plaintiff’s injuries.  Furthermore, the burden on AMI would be substantial.  There is the “overwhelming need to keep liability within reasonable bounds.”

The Court rejected plaintiff’s argument that AMI owed plaintiff a duty based upon a “special relationship” and also rejected plaintiff’s argument that AMI assumed the duty to protect its employee’s future children by employing industrial hygienists and nurses and sending Khaled for a medical examination.  Since AMI’s services were provided to plaintiff’s father, and not to plaintiff, AMI did not assume the duty to safeguard plaintiff’s health.

Since plaintiffs’ strict products liability claim did not require a finding of duty, the Court of Appeal directed the trial court to set aside its order granting AMI’s motion for summary adjudication and enter a new order granting AMI’s motion for summary adjudication on all causes of action except the cause of action for strict products liability.


The Court of Appeal did not expand liability to the existing line of preconception tort cases.  After weighing the Rowland factors, the Court concluded that an employer does not owe a duty of care to an employee’s later-conceived child.  The Court stressed the substantial burden to the employer and “the overwhelming need to keep liability within reasonable bounds.”  

For a copy of the complete decision, see:



Topics:  Duty of Care, Employer Liability Issues, Manufacturers

Published In: Labor & Employment Updates, Personal Injury Updates, Products Liability Updates

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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