March 18, 2015

How far does “premises liability” extend off the premises?

By Deborah J. La Fetra Senior Attorney

Lynne Haver claimed that she contracted mesothelioma as a result of coming into contact with her husband Mike’s clothing (when she did the laundry), tools, vehicles and general surroundings in the 1970’s while Mike was employed by the Santa Fe Railroad (now BNSF Railway). Subsequently, her heirs sued BNSF claiming that, because it owned the premises on which her husband was exposed to asbestos, the railroad’s duty to provide a safe workplace for him extended to a duty to ensure that she, who never set foot on the premises, was never exposed to asbestos. The trial court and the appellate court ruled in favor of BNSF, based on the rule that premises owners owe no duty to protect family members of workers from secondary exposure to asbestos used during the course of the property owners’ business.

The California Supreme Court agreed to review the case, Haver v. BNSF Railway Co. Today, PLF filed an amicus brief supporting BNSF, arguing that California’s law of premises liability does not allow recovery for “take-home” claims, where the plaintiff was never on the property and has no relationship or other close connection to the owner of the property. The landowner’s lack of control over an off-duty, off-premises employee strongly counsels against imposition of a duty, because the class of potential third-party plaintiffs in such circumstances is unknowable and unlimited. Service workers in many industries are exposed to dirty laundry (e.g., hospitals, hotels, and of course, commercial laundries), as are apartment-dwellers and others who share common laundry facilities. The doctrine of premises liability cannot be expanded to cover any potential exposures to this unlimited class of potential plaintiffs, none of whom have any relationship to the premises where the toxins originated. The public policy of creating rational limits on liability counsel against such an expansion of duty. Moreover, establishing a duty in such cases would present serious collateral concerns about how courts are to determine causation in take-home cases. By a large margin, courts nationwide have refused to permit take-home claims based on premises liability, in recognition of the policy concerns that outweigh the foreseeability that a worker’s laundry may expose others to workplace contaminants. PLF urges the California Supreme Court to adopt this majority view.

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