Asbestos Alert: Employers and Land Owners Have Duty to Take-Home Exposure Plaintiffs

by Low, Ball & Lynch
Contact

Kesner v. Pneumo Abex, LLC

Supreme Court of California (December 1, 2016)

We first reported on this case on May 14, 2014, when the Court of Appeal ruled. The case was further appealed to the California Supreme Court, which combined it with another case (Haver v. BNSF Railway Co.) which presented a similar issue. In a unanimous opinion, the Supreme Court held:

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 regularity and intensity of contact that occurs in a worker’s home, it does not extend beyond this circumscribed category of potential plaintiffs.
Decedent Johnny Blaine Kesner, Jr. spent an average of three nights each week at the home of his uncle, George Kesner, from 1973 to 1979. George worked at Abex, where he was exposed to asbestos released in the manufacture of brake shoes. Asbestos fibers came home with him on his person and Johnny was exposed. Johnny developed mesothelioma and died. The Kesner claim was based on employer negligence. Abex moved for and was granted a nonsuit based on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, a case which held that the take-home exposure theory was not viable.

Decedent Lynne Haver was married to a man who, from 1972 to 1974, was exposed to pipe insulation and other products at his place of work. Lynne Haver developed mesothelioma and died. The Haver claim was based on premises liability. The defendant demurred based on Campbell and the demurrer was sustained.

The Supreme Court reversed both decisions and overruled Campbell.

The Supreme Court found: “A reasonably thoughtful person making industrial use of asbestos during the time periods at issue in this case (i.e., the mid-1970s) would take into account the possibility that asbestos fibers could become attached to an employee’s clothing or person, travel to that employee’s home, and thereby reach other persons who lived in the home.” Thus, the Supreme Court determined that take-home exposure was foreseeable, at least as of 1972. The court’s opinion provides several pages of information regarding the enactment in 1952 of U.S. Department of Labor standards for federal contractors, a 1934 recommendation from the International Labour Office’s Standard Code of Industrial Hygiene, and the enactment of OSHA in 1972, all of which addressed the issue of preventing worker’s family members from being experiencing take-home exposure. The court also noted, “as early as 1965, scholarly journals documented fatal cases of mesothelioma where patients’ only exposure was through living with an asbestos worker.” The court held it did not matter whether the plaintiff’s legal theory was one of negligence or premises liability because take-home exposure liability is viable under either theory.

The court did not say that either the Kesner or Haver plaintiffs are necessarily entitled to a damages award, only that they are entitled to move forward to trial. The court characterized its ruling as simply rejecting a “categorical” rule precluding take-home exposure liability, and pointed out that the plaintiffs still must prove the Rutherford factors (duration and proximity, etc. of exposure) and show that any exposure attributable to the defendant is substantial before liability may attach.

Comment and Evaluation

This case is a significant blow to asbestos defendants. 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 has been the subject of heated debate. That debate has now been resolved in California, and the plaintiffs have prevailed. Defendants may still want to pursue a “lack of foreseeability” defense where the take-home exposures ended before 1972, but the Supreme Court’s reference to earlier papers and recommendations means that convincing a court that the exposure or resulting disease was not foreseeable will be an uphill battle, with the slope getting increasingly steeper as the take-home exposures near the 1970s.

We had seen a substantial increase in take-home exposure cases before Campbell. Based on Campbell, defendants had won a significant number of summary judgment and other dispositive motions in take-home exposure cases. When the Supreme Court agreed to review Kesner and Haver, lower courts started putting those motions on hold pending this opinion. Now that the Supreme Court has decided this issue in favor of plaintiffs, we expect to see more cases alleging take-home exposure in the near future.

For the full decision see: Kesner v. Pneumo Abex, LLC

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.

© Low, Ball & Lynch | Attorney Advertising

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.
Custom Email Digest
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.