March 10, 2015

Will the California Supreme Court expand asbestos take-home liability?

By Deborah J. La Fetra Senior Attorney

Johnny Kesner was diagnosed with mesothelioma in 2011.  Because this is an asbestos-related illness, he cast a wide net and sued 19 companies, most of whom were Kesner’s former employers where Kesner was exposed to asbestos on the premises, but also including Pneumo Abex Co., which employed his uncle.  Kesner claims that his uncle left work with asbestos dust on his clothes and that he was exposed to it because, as a child and teenager, he spent up to three days per week visiting his uncle’s home.

Based on a recently decided case in the California Court of Appeal that refused to find liability on a “take-home” claim, the trial court granted Pneumo Abex’s request to find the case without merit and dismiss it.  Kesner appealed and the appellate court reversed, becoming the first published opinion in California to impose a duty on an employer for secondary exposures, and the only appellate court in the country to extend a duty in favor of a guest in an employee’s home.  Specifically, the court held that employers owe a duty in take-home cases, and that this duty exists in favor of anyone (friend, acquaintance, colleague or extended family member) who had “recurring and non-incidental contact with the employer’s employee.”  The California Supreme Court granted review to resolve the conflict between the case on which the trial court relied, and the appellate court in this case.

PLF filed an amicus brief today in Kesner v. Superior Court, arguing that, as a matter of public policy, tort liability should not reach far beyond any employer’s expectations about claims by plaintiffs with whom they have no business or other relationship.  For example, neighbors may share a daily carpool, which is certainly recurring and non-incidental contact.  Is an employer to be potentially liable for diseases contracted by anyone who ever carpooled with a worker exposed to jobsite toxins?  All manner of potential dangers lurk in the workplace and employers must take all reasonable steps to protect the safety of employees. Tort law does not require, however, that employers take affirmative steps to protect anyone with whom the employees come into contact outside of the workplace, even if those contacts are recurring and non-incidental.

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