On May 15, 2014, the Court of appeals reversed a nonsuit judgment entered in favor of asbestos defendant, Pneumo Abbex LLC ("Abex"), holding that an asbestos defendant's duty to take reasonable measures to avoid harm can extend to family members and other long-term guests in the homes of its workers.
In Kesner et al. v.
The Superior Court of Alameda County, et al. No. A136378 (Calif. Ct. App. 1st Dist., Div. 3) ("Kesner"), appellant Johnny Blaine Kesner Jr.'s uncle was employed by Abex from 1973 to 2007. Mr. Kesner, who was a frequent guest in his uncle's home, contended he contracted mesothelioma, in part due to take-home exposure to asbestos from his uncle's clothing. At trial Abex moved for nonsuit, contending that it owed no duty to Mr. Kesner based on the holding in
Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 ("Campbell"), which held that premises owners and employers are not liable to the family members of their workers for take-home exposure because they did not owe a duty to the family members,.
However, the Court noted that Kesner was readily distinguishable from
Campbell involved a claim under a premises liability theory,
Kesner involved a claim under a product liability theory. While both claims require analysis of the same factors, the Court held that in the context of a product liability case, the most significant factor is the degree of foreseeability of harm from secondary (i.e., take-home) asbestos exposure.
The Court did not go so far as to hold that asbestos defendants owe a duty to all individuals who come into contact with their workers. Indeed, the Court of Appeals ruling was based on the assumption that Mr. Kesner's contact with his uncle was extensive. Based on this holding, it appears that plaintiffs may successfully litigate take-home exposure claims against an employer where a plaintiff has established extensive contact with the employer's worker.