Two California Courts of Appeal recently decided cases that will significantly impact secondary asbestos exposure claims in California. The result is that premises owners have no duty to protect family members of workers on their property—including employees—from secondary exposure to asbestos used on their property. However, product manufacturers have a duty to protect their employees’ families from secondary asbestos exposure resulting from the negligent manufacture of asbestos-containing products on site.
In Kesner v. Superior Court, 226 Cal.App.4th 251 (2014), plaintiff Johnny Kesner Jr. alleged that he developed mesothelioma from asbestos exposure while “frequently” spending the night at his uncle’s home, from 1973 to 1979. During that time, his uncle was employed by Pneumo Abex in the company’s Winchester, VA, plant, where asbestos-containing brake linings were manufactured. The plaintiff alleged that he was secondarily exposed to the asbestos dust covering his uncle’s clothes when his uncle returned from work. The plaintiff sued Pneumo Abex on grounds of negligence, breach of express and implied warranties, and strict product liability.
At the beginning of trial, Pneumo Abex moved for nonsuit, arguing it had no duty to prevent asbestos exposure to the plaintiff under Campbell v. Ford Motor Co., 206 Cal.App.4th 15 (2012), which held that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.” (Id. at p. 34.) The trial court granted the motion.
The First District Court of Appeal reversed, emphasizing that, under Civil Code section 1714(a), everyone is responsible for injuries they have caused by failing to use ordinary care. The court then weighed various factors, set forth in Rowland v. Christian, 69 Cal.2d 108, 112-113 (1968), and determined that an exception to Civil Code section 1714(a) was not justified. More specifically, “the likelihood of causing harm to a person with such recurring and non-incidental contact with the employer’s employee, in this case [plaintiff’s] uncle, is sufficient to bring [plaintiff] within the scope of those to whom the employer, in this case [Pneumo Abex], owes the duty to take reasonable measures to avoid causing harm.” (Kesner v. Superior Court, supra, 226 Cal.App.4th at p. 254.)
Less than a month later, the Second District Court of Appeal also faced a secondary exposure case in Haver v. BNSF Railway, 226 Cal.App.4th 1104 (2014). The heirs of the decedent, Lynn Haver, claimed that Haver developed mesothelioma from exposure to asbestos fibers brought home on the clothing of her former husband when he was employed by the Santa Fe Railway, a predecessor to defendant BNSF Railway Company. Santa Fe Railway was not a product manufacturer, but asbestos-containing products and equipment were used at its jobsite. The plaintiffs sued BNSF Railway Company for premises liability.
BNSF Railway Company demurred to the complaint, arguing that, under Campbell, supra, it had no duty to protect Haver from secondary asbestos exposures that occurred off-site. The trial court agreed and sustained the demurrer, without leave to amend. The plaintiffs appealed.
The plaintiffs argued that Campbell was factually distinguishable because the persons creating the secondary exposure in that case were employees of independent contractors, rather than direct employees of the defendant at trial. The Court of Appeal disagreed, noting that another Division of the Second District in Campbell stated that its decision did not turn on this distinction and that “workers [on the property] includes those employed by the property owner, as well as those employed by independent contractors.” (Haver v. BNSF Railway, supra, 226 Cal.App.4th 1104, *3.) Thus, premises owners do not have a duty to protect family members of direct employees, or employees of independent contractors, from secondary exposure to asbestos.
The plaintiffs also argued that Campbell was incorrectly decided. The Court of Appeal rejected this contention by pointing out that Campbell “is consistent with the majority view on the issue of premises liability to third parties based on off-site exposure to asbestos.” (Id. at *3.) It also noted that courts “are wary of the consequences of extending employers’ liability too far, especially when asbestos litigation has already rendered almost one hundred corporations bankrupt.” (Ibid.)
Finally, the plaintiffs argued that BNSF Railway Company had a duty to protect Haver from secondary asbestos exposure under Kesner. The Second District found that Kesner was not controlling. In Kesner, the First District decided that it need not question Campbell because its claims pertained to premises liability. Alternatively, the claims in Kesner were “not based on a theory of premises liability but on a claim of negligence in the manufacture of asbestos-containing brake linings.” (Kesner, supra, 226 Cal.App.4th at p. 258.) The only cause of action before the court in Haver was for premises liability. Accordingly, Campbell applied, and “Campbell made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property.” (Haver v. BNSF Railway, supra, 226 Cal.App.4th 1104, *4.)
The Haver court’s slight criticism of Kesner—by noting the all-encompassing holding of Campbell—may invite further clarification from the California Supreme Court, where Pneumo Abex’s petition for review is now pending.