Duty of Employers and Premises Owners To Exercise Ordinary Care in Their Use of Asbestos Includes Preventing Exposure to Asbestos Carried by the Bodies and Clothing of On-Site Workers.

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Kesner v. Superior Court (2016) 1 C.5th 1132, 210 C.R.3d 283, 384 P.3d 283, involves two cases, both of which ask whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos, which sometimes occurs when a worker who is directly exposed to a toxin carries it home on his or her person or clothing, and a household member is in turn exposed through physical proximity or contact with that worker or the worker's clothing. In one case, plaintiff K’s uncle was employed by defendant A. K alleges that his exposure to asbestos dust from A’s manufacturing plant, which was carried home on his uncle's clothes, contributed to his contracting mesothelioma. In the other case, a wrongful death action, plaintiffs, the Hs, allege that L’s cancer and death was caused by her exposure to asbestos by way of her former husband, who was employed by B. Neither case reached the jury. In K’s action, the trial court granted defendant’s motion for nonsuit, and in the Hs’ action, the trial court sustained defendant’s demurrer, both courts relying on Campbell v. Ford Motor Co. (2012) 206 C.A.4th 15, 141 C.R.3d 390, 6 Summary (10th), Torts, Supp., §859B, which held that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business. In K’s case, the Court of Appeal reversed the trial court's grant of a nonsuit. In the Hs’ case, the Court of Appeal, in affirming, held that Campbell correctly rejected the claim that premises owners owe a duty of care to household members who suffer take-home exposure to asbestos, and distinguished the Court of Appeal's decision in K’s case on the ground that K's claim alleged negligence in the manufacture of products, whereas the Hs' claim rested on a theory of premises liability. In both cases, review was granted, and the cases were consolidated. Held, judgment of the Court of Appeal vacated, in K’s action, and reversed, in the Hs’ action, and both actions remanded; where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers and premises owners have a duty to take reasonable care to prevent this means of transmission. Campbell and Oddone v. Superior Court (2009) 179 C.A.4th 813, 101 C.R.3d 867, 6 Summary (10th), Torts, Supp., §1493, are disapproved to the extent they are inconsistent with this opinion. (1 C.5th 1156.)

(a) General principles.

(1) C.C. 1714 establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. Courts invoke the concept of duty to limit the otherwise potentially infinite liability that would follow from every negligent act. Thus, the conclusion that a defendant did not have a duty constitutes an exception to the broad principle enacted by the Legislature that one's failure to exercise ordinary care incurs liability for all the harms that result. (1 C.5th 1142.)

(2) In determining whether policy considerations weigh in favor of such an exception, courts apply the factors enunciated in Rowland v. Christian (1968) 69 C.2d 108, 70 C.R. 97, 443 P.2d 561, 6 Summary (10th), Torts, §833, i.e., “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” These factors are applied not to determine whether a new duty should be created, but to decide whether an exception to the general duty to exercise ordinary care should be created. The crucial distinction is between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which is for the fact finder to make. (1 C.5th 1143.)

(3) Here, because the general duty to take ordinary care in the conduct of one's activities applies to the use of asbestos on an owner's premises or in an employer's manufacturing processes, the issue is whether a categorical exception to that general rule should be made exempting property owners and employers from potential liability to individuals who were exposed to asbestos by way of employees carrying it on their clothes or person. The issue is not whether K or the Hs have proven that asbestos from defendants actually and foreseeably reached K or L, but rather, whether household exposure is categorically unforeseeable and, if not, whether allowing the possibility of liability would result in such significant social burdens that the law should not recognize such claims. (1 C.5th 1144.)

(b) Rowland factors: foreseeability factors.

(1) “The Rowland factors fall into two categories. Three factors—foreseeability, certainty, and the connection between plaintiff and defendant—address the foreseeability of the relevant injury, while the other four—moral blame, preventing future harm, burden, and availability of insurance—take into account public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief...[W]e conclude that the exposure of household members to take-home asbestos is generally foreseeable and that [B and A] have not shown that categorically barring take-home claims is justified by clear considerations of policy. Accordingly, [A and B] owed plaintiffs a duty of ordinary care to prevent take-home exposure." (1 C.5th 1145.)

(2) The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care is whether the injury in question was foreseeable. As to foreseeability, a court's task in determining duty is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. Thus, defendants here would not need to know the precise manner that exposure occurred, i.e., that L laundered her husband’s clothing or that K roughhoused with his uncle, in order to recognize the general risk posed by workers leaving an area with airborne dust-based toxins and then coming into contact with members of their households. Moreover, at the time K’s uncle and L’s husband worked for defendants, numerous broadly applicable regulations published by the federal Occupational Safety and Health Administration (OSHA) identified the potential health risks of asbestos traveling outside a worksite. And well before OSHA issued these regulations, the federal government and industrial hygienists recommended that employers take measures to prevent employees who worked with toxins from contaminating their families, by changing and showering before leaving the workplace. Defendants argue that there was no scientific consensus regarding the risks of take-home asbestos during the relevant time periods, but they cite no authority requiring a scientific consensus to establish foreseeability in the context of duty analysis. (1 C.5th 1145.)

(3) The second Rowland factor, the degree of certainty that the plaintiff suffered injury, has been noted primarily, if not exclusively, when the only claimed injury is an intangible harm such as emotional distress. Here, plaintiffs allege that defendants’ negligence caused K and L to contract mesothelioma, i.e., injuries that are certain and compensable under the law. (1 C.5th 1148.)

(4) The third Rowland factor, the closeness of the connection between the defendant's conduct and the injury suffered, is strongly related to the question of foreseeability itself. It is well established that one's general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct, including the reasonably foreseeable negligent conduct, of a third person. “The relevant intervening conduct here—that workers returned home at the end of the day and, without adequate precautions, would bring asbestos dust home—is entirely foreseeable.” In other words, the risk of take-home exposure to asbestos is likely enough in the setting of modern life that a reasonably thoughtful employer or property owner would take account of it in guiding practical conduct in the workplace. In support of its claim that L’s injury had only an attenuated connection to B's use of asbestos, B cites cases involving car accidents in which the plaintiffs attempted to hold the defendants liable for creating the situation in which they were hit by a third party driver. But each of those cases turned on either the lack of foreseeability of the intervening negligent conduct or the lack of relationship between the intervening conduct and the defendant's negligence. Thus, B's reliance on the cases involving third party drivers is unavailing. (1 C.5th 1148.)

(c) Rowland factors: policy considerations.

(1) The existence of a duty depends on the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. Thus, a duty of care will not be held to exist even as to foreseeable injuries where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability. (1 C.5th 1149.)

(2) With respect to the policy of preventing future harm, defendants contend that the future risk of the particular injury at issue, i.e., mesothelioma resulting from exposure to airborne asbestos fibers, has largely been eliminated through extensive regulation and reduced asbestos usage, and that imposing a duty to prevent secondary exposure is unlikely to alter the behavior of current asbestos-using businesses. However, regardless of whether the imposition of liability would affect the conduct of current asbestos users, duty analysis looks to the time when the duty was assertedly owed, i.e., the 1970s, and the numerous regulations cited by B suggest that legislatures and agencies readily adopted the premise that imposing liability would prevent future harm. (1 C.5th 1150.)

(3) As for moral blame, it has previously been assigned where the plaintiffs are particularly powerless or unsophisticated compared to the defendants or where the defendants exercised greater control over the risks at issue. Similar considerations apply here; defendants, as commercial users of asbestos, benefitted financially from their use of asbestos and had greater information and control over the hazard than their employees' households. Thus, negligence in their use of asbestos is morally blameworthy. (1 C.5th 1151.)

(4) As for the availability of insurance, A contends that insurance for asbestos-related injuries is no longer widely available, because the insurance industry has revised its standard commercial general liability policies to exclude asbestos. But the relevant insurance policies are those that were available to defendants at the time of exposure, even if the availability of such policies has declined along with the dramatic drop in the use of asbestos. As defendants that had purchased suitable coverage, B and A contend that the scope of potential liability for take-home exposure would exceed policy limits. However, defendants do not offer any evidence concerning the precise policy terms or estimates of the number of take-home claims to support their contention. (1 C.5th 1151.)

(5) The main policy consideration urged by defendants, and the last Rowland factor, is that allowing tort liability for take-home asbestos exposure would dramatically increase the volume of asbestos litigation, undermine its integrity, and create enormous costs for the courts and community. In evaluating defendants' concerns, the court's duty analysis is forward, not past, looking, and the most relevant burden is the cost to the defendants of upholding, not violating, the duty of ordinary care. Defendants do not claim that precautions to prevent transmission via employees to off-site individuals, such as changing rooms, showers, separate lockers, and on-site laundry, would unreasonably interfere with business operations, or that the costs involved would impede their ability to carry out an activity with significant social utility. (1 C.5th 1152.) Defendants contend that a finding of duty in these cases would open the door to an enormous pool of potential plaintiffs, such as numerable relatives, friends, acquaintances, service providers, babysitters, neighbors, carpool partners, fellow commuters on public transportation, and laundry workers. These concerns do not clearly justify a categorical rule against liability for foreseeable take-home exposure, but they do point to the need for a limitation on the scope of the duty here. Thus, “[w]e hold that an employer's or property owner's duty to prevent take-home exposure extends only to members of a worker's household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time…By drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm.” On remand of K’s case, the parties may submit additional evidence on whether K was a member of his uncle’s household for purposes of the duty recognized here. Defendant A contends that the duty should be limited to immediate family members. However, the general foreseeability of harm turns on the regularity and intimacy of physical proximity, not on the legal or biological relationship, between the asbestos worker and a potential plaintiff. (1 C.5th 1153, 1154.)

(d) Negligence versus premises liability.

(1) The Hs and K allege different primary theories of liability: premises liability (the Hs) and negligence (K). B argues that even if employers have a duty to prevent employees from exposing members of their household to asbestos by carrying fibers home on their clothing, property owners do not have a similar obligation with respect to workers on their premises. This argument is without merit. The duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases, and under both theories, duty is based on an application of the Rowland factors. (1 C.5th 1158.)

(2) The California Courts of Appeal have repeatedly concluded that a landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Nevertheless, B claims that California has never expanded premises liability to permit lawsuits by plaintiffs whose only connection to the property at issue is an encounter with someone who visited the site. Although this last statement is superficially correct, it misconstrues the Hs' theory of negligence. It is not L's contact with her husband that allegedly caused her mesothelioma, but rather her contact with asbestos fibers that B used on its property. (1 C.5th 1159.)

(3) However, the duties of employers and the duties of premises owners are not necessarily coextensive. The law of premises liability includes a number of affirmative defenses and exceptions flowing from the general principle that the duties owed in connection with the condition of land are not invariably placed on the person holding title, but, rather, are owed by the person in possession of the land, because of the possessor's supervisory control over the activities conducted on, and the condition of, the land. Whether one or more of these defenses or exceptions applies here is not addressed, because no such defense or exception has been alleged. (1 C.5th 1160.)

Witkin References

On Rowland factors, see 6 Summary (10th), Torts, §833.

On illustrations of duty approach, see 6 Summary (10th), Torts, §840 et seq.

On injuries to worker’s family members, see 6 Summary (10th) Torts, §859B.

On abestos as product in strict liability cases, see 6 Summary (10th), Torts, §1438.

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Friday, January 27, 2017