Kesner v. Superior Court of Alameda County
1 Cal. 5th 1132 (2016)
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Rule of Law:
An employer or premises owner that uses a hazardous substance like asbestos owes a duty of care to members of a worker's household to prevent secondary 'take-home' exposure. This duty is based on the foreseeability of harm to those in close and sustained contact with the worker, but does not extend to the public at large.
Facts:
- In one case, George Kesner worked at a Pneumo Abex, LLC (Abex) plant where he was exposed to asbestos during the manufacture of brake shoes.
- From 1973 to 1979, George's nephew, Johnny Kesner, frequently stayed overnight at George's home and would roughhouse with him while George was still wearing his work clothes.
- Johnny Kesner was later diagnosed with peritoneal mesothelioma.
- In a separate case, Mike Haver worked for a predecessor of BNSF Railway Company (BNSF) from 1972 to 1974, where he was exposed to asbestos from pipe insulation.
- Mike carried asbestos fibers home on his body and clothing.
- His wife, Lynne Haver, who began living with him in 1973, was exposed to these fibers through contact with Mike and his work clothes.
- Lynne Haver was subsequently diagnosed with mesothelioma and died.
Procedural Posture:
- Johnny Kesner filed a personal injury suit against Pneumo Abex, LLC (Abex) in trial court.
- The trial court granted Abex's motion for nonsuit, entering a final judgment in Abex's favor.
- Kesner appealed to the Court of Appeal, which reversed the trial court's judgment.
- The Havers filed a wrongful death suit against BNSF Railway Company (BNSF) in trial court.
- The trial court sustained BNSF's demurrer to the complaint, effectively dismissing the case.
- The Havers appealed, and the Court of Appeal affirmed the trial court's judgment.
- The California Supreme Court granted review in both cases and consolidated them for decision.
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Issue:
Does an employer or premises owner that uses asbestos in the workplace owe a duty of care to an employee's household members to protect them from secondary asbestos exposure caused by fibers carried home on the employee's person or clothing?
Opinions:
Majority - Liu, J.
Yes. An employer that uses asbestos in the workplace has a duty of care to protect employees’ household members from exposure to asbestos carried off-site. The court's reasoning is based on California's general duty of care (Civil Code § 1714) and an application of the Rowland factors. The court found that the harm to household members was reasonably foreseeable, especially given that federal OSHA regulations from 1972 specifically required employers to provide changing rooms and separate lockers to prevent contamination of street clothes. This indicates awareness of the risk that workers could act as vectors for asbestos. The connection between the defendants' conduct and the plaintiffs' injuries is direct enough, as the employees' intervening actions were a foreseeable consequence of the failure to contain the asbestos. While policy concerns about limitless liability are significant, they do not justify a categorical bar on all take-home claims. Instead, these concerns warrant limiting the duty to a specific, identifiable group: members of the worker's household. This limitation strikes a balance between compensating foreseeable victims and preventing an unmanageable flood of litigation from individuals with more casual or incidental contact.
Analysis:
This decision establishes a significant precedent in California tort law by formally recognizing a duty of care for 'take-home' or secondary toxic tort liability. It expands the potential liability of employers and premises owners beyond the physical boundaries of their property, holding them accountable for foreseeable harm caused by hazardous substances they control. The court's critical move was to limit this expanded duty to 'members of a worker's household,' creating a clear, though potentially debatable, line to prevent what it feared could become limitless liability. This 'household' limitation will likely be a key point of contention in future cases involving secondary exposure to various toxins, as plaintiffs and defendants argue over its scope and application.
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