Premises Owners and Employers on the Hook for Workers’ Dirty Laundry
In a unanimous decision issued on December 1, 2016, the California Supreme Court held that both employers and premises owners have a duty to prevent secondary or “take-home” asbestos exposure that extends to members of a worker‘s household. The Court heard the consolidated cases of Kesner v. Pneumo Abex (2014) 226 Cal.App.4th 251and Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104 regarding household members of workers who were directly exposed to asbestos in the workplace and then carried the substance home on their persons and clothing. The plaintiffs in these cases alleged that the household members were exposed to toxic asbestos fibers in the workers’ homes and that this “take-home” exposure was a contributing factor in household members’ asbestos-related deaths.
The High Court’s decision reconciles prior conflicting opinions issued by the Courts of Appeal in the First and Second Districts. In 2012, in the landmark case of Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the Second District Court of Appeal held that premises owners owe no duty of care to protect their worker’s family members from “take-home” asbestos exposure. In Campbell, Ford hired independent contractors to install asbestos-containing insulation at Ford’s plant in New Jersey. The plaintiff alleged that she contracted mesothelioma as a result of her exposure to asbestos from laundering her father’s and brother’s asbestos-covered work clothing during the time they worked at Ford’s premises. In declining to find that Ford owed the plaintiff a duty of care, the court examined the factors under Rowland v. Christian (1968) 69 Cal.2d 108, that when balanced together, may justify a departure from the general principle that everyone is responsible for an injury caused to another by his failure to use ordinary care in the management of his property. While evaluating the foreseeability of harm to the plaintiff, the court emphasized that the plaintiff had never set foot on Ford’s premises, and the closeness of Ford’s work on the premises and the injury suffered by a worker’s family member off site was quite attenuated. In addition, the court concluded that strong policy considerations mitigated against the imposition of a duty of care on property owners for such secondary exposure.
Following Campbell, the Courts of Appeal have been divided on the issue, depending on whether the plaintiff’s claim was grounded in premises liability or negligence in the manufacture of asbestos-containing products. In Kesner, the First Appellate District held in May 2014 that asbestos-containing brake lining manufacturer Pneumo Abex owed a duty to protect plaintiff Kesner from exposure to asbestos through contact with his uncle, a Pneumo Abex employee, even though that contact occurred away from the manufacturer's premises, at the home of Kesner’s uncle. Conversely, one month later in June 2014, in the Haver case, the Second Appellate District concluded that BNSF Railway owed no duty to protect the wife of one of the railway's employees from exposure to asbestos fibers through contact with her husband and his clothing in their home, off BNSF’s premises.
These conflicting opinions seemed to be somewhat reconcilable by the fact that, while Kesner involved causes of action for negligence and strict products liability, Haver involved a cause of action for premises liability. In both cases, it was an employee of the defendant who carried the toxic substance home. However, the Supreme Court’s December 1, 2016, holding abrogates any such distinction. The High Court noted that California legislative policy and Supreme Court precedent have always treated foreseeability as the predominate factor in the duty analysis, and not the relationship of the parties.
Evaluating the foreseeability of take-home asbestos exposure, the High Court observed, “It is a matter of common experience and knowledge that dust or other substances may be carried from place to place on one’s clothing or person, as anyone who has cleaned an attic or spent time in a smoky room can attest.” The Campbell and Haver courts reasoned that strong public policy considerations counseled against imposing a duty of care for take-home asbestos exposure. However, in weighing the public policy factors against the foreseeability of take-home exposure, the Supreme Court found these public policy considerations to be less compelling. In sum, where it is reasonably foreseeable that a worker, their clothing, or personal effects will carry asbestos from the worksite to the worker’s home, the Supreme Court held that both employers and premises owners have a duty to take reasonable care to prevent transmission of the substance to members of the worker’s household.
It is important to note that the Supreme Court’s decision restricts other California courts from expanding the pool of potential plaintiffs in take-home exposure cases. By expressly holding that an employer’s or premises owner’s duty to prevent take-home exposure extends only to members of a worker‘s household, and not to others who may be exposed to asbestos through incidental contact with the worker, his clothing or personal effects, the Court has limited potential plaintiffs to “an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”
However, it is equally important to emphasize that, even though this decision specifically addresses take-home exposure to asbestos, nothing in the decision precludes California courts from expanding this holding by finding that the Supreme Court's analysis on the foreseeability of asbestos transmission and exposure applies to other toxic substances as well. In order to reduce the likelihood of injury to third parties and to limit exposure to liability, employers should take all reasonable protective measures to prevent harmful substances encountered in the workplace from being carried home on the bodies, clothing, or personal effects of its employees. Such steps may include providing employees with training regarding the dangers of take-home exposure, posting warnings regarding such dangers, requiring workers to wear protective clothing while on duty, ensuring that workers shower after shifts and leave used work clothing at the premises, and/or providing laundering of work clothes.
Arent Fox will continue to monitor developments in this area. If you have any questions, please contact the authors of this post or the Arent Fox professional who usually handles your matters.