Round Three: California Appellate Courts Home in on Duty of Care in Household Asbestos Exposure

by Wilson Elser

On June 3, 2014, Wilson Elser issued a Client Alert on the decision in Johnny Blaine Kesner Jr. v. Superior Court of Alameda County (2014) 226 Cal.App.4th 251, in which the First District Court of Appeal held that an employer owed a duty of care to a third party for exposure to asbestos through contact with its employee where the foreseeability of harm was substantial. In doing so, the Court overturned the trial court’s granting of a non-suit based on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15. Notably, in the Kesner case, the claims against the defendant were based on negligence and products liability, while in Campbell, the claims were based on premises liability.

On the same day the Kesner alert was published, the California Court of Appeal for the Second District filed its opinion in Joshua Haver et al. v. BNSF Railway Co. (June 3, 2014) 226 Cal.App.4th 1104. This time, the Court held that a landowner owes no duty of care to a third party who was exposed to asbestos through a person who worked on the landowner’s premises, where the only cause of action is for premises liability. 

Factual and Procedural Background
In Haver, the decedent allegedly contracted mesothelioma as a result of her secondary exposure to asbestos through her former husband, Mike Haver. In the 1970s, Mike Haver was employed by a predecessor of defendant BNSF Railway Company. During this employment he allegedly was exposed on BNSF’s premises to products and equipment containing asbestos. The complaint alleged that the decedent inhaled asbestos fibers “as a result of her direct and indirect contact with Mike [Haver], his clothing, tools, vehicles, and general surroundings.” 

Relying on Campbell v. Ford Motor Company, defendant BNSF demurred on the ground that it owed no duty to the decedent as a matter of law in an action based on premises liability. The trial court sustained BNSF’s demurrer and plaintiffs appealed.

Analysis and Conclusion
Here, the Court of Appeal followed the Campbell holding, and distinguished Kesner on its facts. Contrary to the plaintiff’s argument, the Court said that the “no duty” holding is not limited to the situation, as in Campbell, where the worker is employed by a subcontractor as opposed to being directly employed by the premises owner. The Haver court noted that while Campbell considered the “attenuated” relationship between the premises owner and the worker who had been hired by the subcontractor of another subcontractor, Campbell also emphasized that its “analysis [did] not turn on this distinction.” The Kesner case, however, is distinguishable from Haver and Campbell because Kesner did not allege premises liability, but rather negligence in the “manufacture of brake linings that contained asbestos.” Of course, this manufacture occurred on the defendant’s premises where the worker who allegedly “took home” the asbestos fibers was employed. 

The courts in Kesner and Haver are united in their conclusion that the Campbell “no duty rule” is limited to cases where the only claims against a defendant are grounded in premises liability. The Haver court points out that “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action,” as opposed to an action for negligence; this despite the fact that the elements of a cause of action for premises liability are the same as for negligence: duty, breach, causation and damages.

While the Kesner opinion seems inconsistent with the holding in Campbell, the court in Haver has taken great pains to repudiate any such assertions. It remains to be seen whether the California Supreme Court will step in to have the final say on this issue.


Written by:

Wilson Elser

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