Expanding Liability To Take-Home Asbestos


The California Supreme Court has changed the legal landscape for California businesses with its recent decisions in Haver vs. BNSF Railway Co., No. S219919 (Calif. Sup. Ct.) and Kesner v. S.C. (Pneumo Abex LLC), No. S219534. The Supreme Court recently heard oral argument on these two asbestos cases involving claims of take-home exposure to family members of asbestos-workers. The Supreme Court's decision to extend an employer's duty to include exposure of workers' family members to take-home asbestos will give defense counsel for these employers and companies additional aspects to consider when evaluating these types of cases in the future.

The decision handed down by the Supreme Court follows two appellate court decisions in Haver vs. BNSF Railway Co., No. S219919 (Calif. Sup. Ct.) and Kesner v. S.C. (Pneumo Abex LLC), No. S219534. In the first case, Haver vs. BNSF Railway Co., the Second District Court of Appeal rendered a decision in favor of Defendants. In Haver, Plaintiff Lynn Haver ("Haver") claimed that she developed mesothelioma due to prolonged exposure to asbestos on her husband's work clothing, as he had worked with asbestos-containing products for a number of years. Defendant, BNSF Railway Co. ("BNSF"), filed a demurrer to dismiss the complaint, arguing that they did not owe a duty of care to protect Haver from asbestos exposure. The trial court sustained BNSF's demurrer, relying on the holding in Campbell v. Ford Motor Co. in finding that a duty of care did not extend to an employee's family member.Campbell v. Ford Motor Co., 206 Cal.App.4th 15, 2012. Haver appealed, arguing that the decision in Campbell was limited to independent contractors. However, the appellate court rejected her argument, noting that the Campbelldecision was not limited to independent contractors and applied to claims of negligence and premises liability.

It's twin case, Kenser v. S.C., provided an opposite result that strayed from Campbell's logic. In Kesner, Plaintiff, Johnny Blaine Kesner Jr. ("Kesner"), claimed that he developed mesothelioma from being exposed to asbestos in his uncle's clothing. Kesner claimed that his uncle had worked for Pneumo Abex ("Abex") for over 30 years and that he was a frequent guest in his uncle's home. The trial court granted Abex's motion for nonsuit, using Campbell's logic in finding that the duty to warn did not extend to Kesner. The appellate court, however, reasoned that the case was distinguishable from Campbell because Kesner's claim was based on negligence, not for premises liability. It emphasized that it was substantially foreseeable for family members of an employee working with asbestos to suffer harm due to take-home asbestos exposure. Due to this foreseeability, the appellate court concluded that Abex did have a duty to warn and protect Kesner from second-hand asbestos exposure from his uncle's clothing. However, the appellate court cautioned that the existence of a duty of care does not show negligence and that factual showings, including the extent of the employer's knowledge and the reasonableness of measures to prevent take-home asbestos exposure, must still be made.

The Supreme Court considered both Haver vs. BNSF Railway Co. and Kesner v. S.C., and ultimately decided to extend the duty to prevent asbestos exposure to immediate family members of asbestos-workers. In keeping with the appellate court's decision in Kesner, the California Supreme Court found that an employer's duty of care (and duty to warn) from asbestos exposure extends not only to their employee workers, but to immediate family members that may be exposed to asbestos that remains on the workers' clothing and transfers to the home. Additionally, the Supreme Court rejected the argument raised by the defense in Kesner that this duty to warn should not be extended in cases of premises liability, reasoning that this duty extends equally to claims of general negligence and premises liability.

In coming to this decision, the court ruled that the foreseeability of an asbestos-worker's family being exposed to take-home asbestos was significant enough to impose a duty upon employer's to warn of such danger. In doing so, the Court departed from the reasoning of Campbell and aligned itself with courts across the country that has extended the duty of employers to family members of asbestos-workers. This landmark decision may greatly affect asbestos litigation in California, as it opens the door to a litany of actions by family members claiming take-home asbestos exposure, increasing the likelihood of liability for employers. However, this extended duty does have its limitations, as the Court limited the duty to only members of a worker's household. Additionally, family members claiming exposure must still make factual showings to determine that the employers are negligent in their actions. Despite these limits, this extended duty may steal the holiday cheer from employers and businesses involved with asbestos.

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