On May 7, a California District Court Judge granted Victory Woodworks, Inc.’s (“Victory”) motion to dismiss all COVID-19 liability claims in plaintiffs Robert and Corby Kuciemba’s amended complaint. Kuciemba et al. v. Victory Woodworks Inc., No. 3:20-cv-09355 (N.D. Cal. 2020). Relying on a novel theory of liability, the Kuciembas alleged that Mr. Kuciemba contracted mild COVID-19 in the course and scope of his employment at Victory, and subsequently passed it on to his wife, who suffered a severe case of COVID-19 with lasting injury. The Kuciembas sought damages from Victory for Mrs. Kuciemba’s injuries related to COVID-19.
The court initially granted a motion to dismiss with leave to file an amended complaint, then considered Victory’s motion to dismiss the amended complaint. The court rejected all avenues for relief in civil court for the Kuciembas, dismissing the amended complaint without leave to amend, and finding (1) to the extent the claims are based on allegations that Mrs. Kuciemba contracted COVID-19 directly through contact with her husband, they are barred by California’s workers’ compensation statutes, (2) to the extent the claims assert that Mrs. Kuciemba contracted COVID-19 indirectly through fomites (objects or materials which are likely to carry infection, such as clothes, utensils, and furniture), plaintiffs failed to plead a plausible claim, and (3) notwithstanding the previous two scenarios, Victory’s duty to provide a safe workplace to its employees does not extend to nonemployees who contract a viral infection away from the premises.
California Workers’ Compensation Statutes as Exclusive Remedy
In both their original and amended complaints, the Kuciembas argued that Mrs. Kuciemba has a separate and distinct claim that is not derivative of Mr. Kuciemba’s claim and is therefore not barred by California’s Workers’ Compensation Statutes. See Cal. Labor Code §§ 3600, 3602. The Kuciembas cited a case in which a California court found that an employee’s child had a distinct claim from the employee because she was exposed to toxic levels of carbon monoxide present at the worksite while still in utero. Snyder v. Michael’s Stores, 945 P.2d 781 (Cal. 1997). The Kuciembas argued that Mrs. Kuciemba had an analogous claim based on “direct contact” with her husband. However, the court twice rejected this argument and ordered that, if Mrs. Kuciemba has any claim as to COVID-19 she contracted from her husband, her exclusive remedy is under the Workers’ Compensation Statutes. She was never present at Victory’s facility and allegedly only contracted COVID-19 due to her interactions with her husband.
Kesner/Take-Home Liability Not Extended to COVID-19
In the amended complaint, the Kuciembas for the first time claimed that Mr. Kuciemba’s clothing or personal effects carried the virus home and that Mrs. Kuciemba indirectly contracted COVID-19 from those objects rather than from direct contact with her husband. They attempted to draw a parallel to Take-Home Liability for hazardous asbestos exposure. Much of the parties’ arguments centered around the holding of Kesner v. Superior Ct., a 2016 California Supreme Court opinion finding an employer liable for an employee’s nephew’s exposure to asbestos, subsequent mesothelioma, and death allegedly caused by take-home fibers on the uncle’s clothing. 384 P.3d 283 (Cal. 2016). The Kuciembas asserted that the Kesner precedent could be applied to COVID-19 with the virus transferring in the same way as asbestos fibers.
Victory refuted this novel causation theory and argued that the holding of Kesner is narrow due to the nature of the asbestos industry and how it is regulated. Mesothelioma is not an infectious disease and the nephew contracting the illness had nothing to do with his uncle contracting the disease on the jobsite. Instead, Kesner turned on whether a company that uses a hazardous product as part of its commercial enterprise and allows that product to be conveyed off-site by an employee owed a duty to protect those in the employee’s household from harm. The California Supreme Court found that such a duty was consistent with precedent recognizing “liability for harm caused by substances that escape an owner’s property” where the company fails to exercise reasonable care in its use of asbestos-containing materials. The Court did not find a new duty, but rather extended a pre-existing source of liability when harm is caused by a substance that originated from and escaped an owner’s property.
By contrast, Victory argued, COVID-19 did not originate in Victory’s facilities, nor did Victory (or anyone else) benefit financially from the presence of the virus on its job site.
In addition, COVID-19 is a ubiquitous, naturally occurring virus that Mrs. Kuciemba is equally likely to have picked up while carrying out her everyday activities as from her husband’s exposure in the workplace. Official guidance for reducing spread of COVID-19 cited by the Kuciembas in their complaint does not require a guarantee from employers that workers will return home every day COVID-free. Instead, Victory argued, the guidance recommends best practices to reduce spread of the virus and acknowledges that spread cannot be completely prevented.
While the court’s order is concise and did not explicitly address the application of Kesner, the court did state that the Kuciembas failed to state a plausible claim with respect to the transmission of COVID-19 “indirectly through fomites such as [Robert Kuciemba’s] clothing.” The court further explained that, to the extent the claims are not deemed insufficiently pleaded, they are still subject to dismissal because Victory’s duty to provide a safe workplace to employees does not extend to nonemployees who contract a viral infection away from the premises.