The state's Supreme Court has unanimously held that employers do not owe a duty of care under tort law to prevent the spread of COVID-19 to employees' household members. Although the Court, in Kuciemba v. Victory Woodworks, Inc., found that an employee spouse's negligence claims were not barred by the Workers' Compensation Act (WCA, Labor Code section 3200 et seq.), it ultimately concluded that public policy considerations necessitated an exception to the general duty of care in concluding that employers are not liable for take-home COVID-19 claims.

Background

Defendant Victory Woodworks, Inc. (Victory) transferred workers from a construction site where they may have been exposed to COVID, to another worksite where Plaintiff Robert Kuciemba was assigned. Victory did not take precautions required by the county's health orders. Robert contracted COVID-19, and infected his wife Corby, who was hospitalized for several weeks. The Kuciembas sued in state court, asserting negligence claims, alleging Victory's violations of the health orders. Victory removed the case to federal court where its motions to dismiss were subsequently granted.

California Supreme Court Decision

On appeal, the California Supreme Court agreed to answer two questions certified from the Ninth Circuit Court of Appeals: 1) does the WCA bar a spouse's negligence claims; and 2) does an employer owe a duty of care to prevent the spread of COVID-19 to an employee's household members? The Court responded no to both questions.

Concerning the first question, workers' compensation benefits provide the exclusive remedy for third party claims if the asserted claims are "collateral or derivative" of the employee's workplace injury. However, nothing in the language of the WCA nor case law "remotely suggests that third parties who, because of a business's negligence, suffer injuries—logically and legally independent of any employee's injuries—have conceded their common law rights of action as part of the societal 'compensation bargain'". Corby's negligence claims were held not to be legally or logically dependent on any workplace injury sustained by Robert, and the "but for" casual ink between her injury and Robert's exposure to COVID was insufficient to render the claims derivative. The WCA's exclusivity provisions were not triggered.

Pertaining to the second question, the Court acknowledged that under Civil Code section 1714, everyone has a default duty to exercise reasonable care for the safety of others. This duty applies in the COVID context where the Kuciembas have alleged that defendant, through its own actions, created an unreasonable risk of the disease's transmission.

But exceptions to the general duty of care can be recognized when supported by compelling policy considerations, described in Rowland v. Christian, including whether the social utility of the activity concerned is so great, and the avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.

The Court held, "there is only so much an employer can do" to prevent the spread of COVID-19. Precautions such a masks and social distancing depend on compliance by individual employees, and employers have limited or no control over safety precautions taken by employees and their household members outside the workplace, including self-reporting of disease exposure. Imposing tort liability could result in some employers closing down their businesses or impose workplace restrictions that significantly slow down work production. "The economic impact of such changes could be substantial and is difficult to forecast".

The Court specifically distinguished Kesner v. Superior Court, a 2016 ruling which allowed take-home liability for asbestos exposure, by emphasizing the differences in exposure time and type necessary for transmissibility of asbestos versus COVID-19—asbestos injury resulted from frequent and sustained contact with asbestos fibers on an employer's clothing, compared with the possibility of COVID-19 exposure after just 15 minutes or even after the infected person has left the employee's space. The limited transmissibility of asbestos provides a finite potential pool of asbestos litigants compared with the enormous potential pool of COVID-19 litigants, which could number up to millions in California.

Predicting dire financial consequences for employers and a deluge of lawsuits that would overburden the judicial system, the Court ultimately concluded that while foreseeability factors largely tilted in favor of finding a duty of care, the policy factors weighed against recognizing a duty of care.

Note: Based on the California Supreme Court’s holding described above in Kuciemba, the Ninth Circuit subsequently affirmed the District Court’s dismissal of Plaintiff’s complaint.  

Takeaways

With this ruling, California joins a small but growing number of states that have banned employer liability for take-home COVID-19 claims. As always, DWT will continue to monitor these issues and provide updates as needed.