The last 90 days have seen two Court of Appeal decisions addressing this question: when a worker has been exposed to asbestos fibers and brought those fibers home on his or her clothing, can a relative who contracts mesothelioma sue a source of those taken home fibers seeking recovery for the relative’s damages?
This “take-home” question is pretty hot in the asbestos litigation world nationwide, both legally and scientifically. A recent review of the epidemiological literature by Donavan and others concluded that there was an apparent association between para-occupational exposure and disease only for family members of workers from industries associated with high levels of exposure to amphibole or mixed fiber asbestos. But the question here is this: When a worker is occupationally exposed to asbestos and brings the fibers home on his clothing, can the spouse or child who does the laundry sue thirty or forty years later on the theory that the take-home exposure caused disease?
As of today, the answer in California seems to be “yes and no,” depending on who is sued. If the fibers on the clothing came from asbestos-containing products, and the exposed-at-home plaintiff sues the worker’s employer for negligence, there is no liability because the employer owes no legal duty to the family member. Campbell v. Ford Motor Company (2012) 206 Cal.App.4th 15. Why?
Find out after the jump.
Because under the analysis required by California’s Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, and more recently Cabral v. Ralphs Grocery Co.(2011) 51 Cal. 4th 764,
- The connection between the worker’s employer / property owner and the plaintiff (in this case the worker’s spouse) was too highly attenuated, particularly when she had never set foot on the premises;
- There was little or no moral culpability attached to the employer failing to protect the spouse; and
- The burdens on the employer and the community were too great: “[I]mposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is the cost of insuring against liability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to the community may be considerable.”
In June, a Court of Appeal in another take-home case found no legal duty owed by a non-employer property owner to a take-home plaintiff, based on the same logic expressed in Campbell. Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104.
But just before the Haver decision, another Court of Appeal ruled that an identically situated plaintiff – no connection with the work place, para-occupational (second-hand) exposure, suing the worker’s employer, etc. could proceed – because the employer was a manufacturer of asbestos-containing products. Kesner v. Superior Court (2014) 226 Cal. App. 4th 251. Why?
- “The harm to third parties that can arise from a lack of precautions to control friable asbestos that may accumulate on employees' work clothing is generally foreseeable;”
- “Moral blame, the fourth of the factors identified in Rowland, also tends to support extension of an employer's responsibility to more than its employees. Assuming, as we must, the truth of Kesner's allegation that Abex was aware of the risks to those exposed directly or indirectly to the asbestos dust generated in its facility and took no steps to avoid those risks, certainly such indifference would be morally blameworthy;”
- “A rule of law that holds an employer 260*260 responsible for avoiding injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing process can be expected to prevent harm to others in the future;”
- “[E]xtending the employer's duty of care to such persons does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited number of persons;” and
- “Nor is there reason to believe that manufacturers cannot obtain insurance coverage to protect against their liability, while individuals cannot purchase insurance covering loss of income or their own pain and suffering resulting from a toxic-induced illness such as mesothelioma.”
So there we have it: three cases of take-home exposure. In one (Haver), the defendant is a property owner alleged to have negligently exposed a worker on the premises to asbestos fibers that the worker carried home on his clothing, causing the plaintiff to get sick. No duty. In another (Campbell), the defendant is an employer alleged to have negligently exposed a worker on the premises to asbestos fibers that the worker carried home on his clothing, causing the plaintiff to get sick. No duty. And in the third (Kesner), the defendant is a property owner and employer, alleged to have negligently exposed a worker on the premises to asbestos fibers that the worker carried home on his clothing, causing the plaintiff to get sick.
The holding: the defendant in Kesner owed a legal duty to the plaintiff, and can be held liable if it negligently breaches that duty. What’s the difference between Kesner, on the one hand and Campbell and Haver on the other hand? In Kesner, the defendant also manufactured asbestos-containing products.
Really? That’s supposed to be a meaningful difference? Well, the Plaintiff in Haver has petitioned California’s Supreme Court for a hearing. The Defendant in Kesner has done the same thing. Cal Supremes have until September 23 to accept Kesner for hearing and until October 13 to accept Haver.