December 6, 2016

California: "take-home" liability extends to workers' households

By Deborah J. La Fetra Senior Attorney

Kesner v. Superior Court and Haver v. Burlington Northern Santa Fe Railroad are consolidated cases resulting in a single decision by the California Supreme Court holding that California tort law recognizes “take-home” liability in asbestos cases. “Take-home” cases arise when an employee worked with asbestos on the job 30-50 years ago and got asbestos dust on his clothes, exposing other family members to the toxic dust, after which they were diagnosed with asbestos-related illnesses. In Kesner, the plaintiff was a man who frequently visited his uncle, whose clothes were contaminated with asbestos dust from his workplace. In Haver, the plaintiff was the employee’s wife, who was exposed to the dust on her husband’s workclothes when doing the laundry. In neither case did the plaintiff have any personal relationship with the employer or set foot on the employer’s premises.

Cases around the country have split about evenly on whether employers are liable in this situation. The cases that decide the question on a theory of premises liability hold in favor of the employer/property owner, because they owed no duty to people who neither worked for them nor were ever present on the property. The California Supreme Court, aligned with cases that treat the matter as one of general negligence rather than premises liability. Last Thursday (Dec. 1), the court held that employers and premises owners owe a duty to household members of employees to prevent exposure to asbestos carried by the bodies and clothing of the on-site workers.

PLF’s amicus brief cautioned the court about the ramifications of a broad duty to prevent take-home exposure, specifically calling out workers who carpool, home health-care workers or babysitters, and those who live in apartments with shared laundry facilities. Fortunately, the court did place some boundaries on this expansion of California tort law. Most importantly, it limits the secondary plaintiffs to those who are regular members of the employee’s household (regardless of whether they are family members). “Any duty rule will necessarily exclude some individuals who, as a causal matter, were harmed by the conduct of potential defendants. By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.”

While the court is overly-optimistic in its assertion that this limitation “strikes a workable balance” between compensating foreseeable injuries and “protecting courts and defendants from the costs associated with litigation of disproportionately meritless claims,” the limitation does mean that these cases are not over yet. Both cases were remanded for further proceedings: in Haver, to determine if a different defense to the premises liability should apply to preclude recovery, and in Kesner, to determine if the nephew was a member of the household. Moreover, because both cases decided only the prerequisite issue of whether the employers owed a duty to the secondary plaintiffs, the plaintiffs must still prove that this take-home exposure – as opposed to many other, often direct, exposures – resulted in their illnesses.

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