On May 15, 2014, the First District Court of Appeal in California found that the trial court had erred in granting a nonsuit in favor of Pneumo Abex, LLC (Abex) in the asbestos personal injury action of Johnny Blaine Kesner, Jr. v. Superior Court of Alameda County. The Court held that an employer owes a duty of care to a third party for exposure to asbestos through contact with its employee where the foreseeability of harm is substantial.
Factual and Procedural Background
The plaintiff, Johnny Kesner, was diagnosed with peritoneal mesothelioma in February 2011. He filed suit against a number of defendants alleging causes of action for negligence, breach of express and implied warranties, and strict products liability. At the time of trial, Abex was the only remaining defendant.
The plaintiff alleged that his uncle, an employee at Abex’s brake-lining manufacturing plant from 1973 to 2007, was exposed to harmful levels of asbestos at this job and brought home the asbestos fibers on his person and clothing. Kesner claimed he was exposed to asbestos fibers through his uncle as a frequent guest in his uncle’s home between 1973 and 1979. His uncle allegedly came home in his work clothes covered in asbestos dust. While still in his work clothes, Kesner’s uncle would often play with the plaintiff and sometimes sleep near him. In his deposition, Kesner testified that during his childhood, he went to see his uncle once or twice a week. During his teen years, he was at his uncle’s home three to four times a week. Once the plaintiff joined the service, he would stay with his uncle during home visits. The uncle testified that Kesner came to his house, on average, three times a week.
At the beginning of trial, Abex moved for nonsuit on the basis that it had no legal duty to prevent asbestos exposure to the plaintiff under the rule in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15. The trial court, relying on Campbell, found that “Abex owed no duty to [plaintiff] Kesner for any exposure to asbestos through contact with an employee of the Abex plant … none of which exposures took place at or inside Abex’s plant” and entered a final judgment in Abex’s favor.
The Court of Appeal reversed the trial court’s decision and held that the “likelihood of causing harm to a person with such recurring and non-incidental contact with the employer’s employee … is sufficient to bring Kesner within the scope of those to whom the employer … owes the duty to take reasonable measures to avoid causing harm.”
In any case where a claim for negligence is asserted, the general rule in California is that each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances. Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764, 771. Here, the issue was whether to impose a duty of care on a manufacturing company in a secondary exposure case.
In reaching its decision, the Court of Appeal considered seven factors outlined in Rowland v.Christian (1968) 69 Cal. 2d 108:
- 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 imposing a duty to exercise care with resulting liability for breach
- The availability, cost and prevalence of insurance for the risk involved.
The Court, in weighing the foreseeability of harm as one of the more significant factors, found that there is a high degree of foreseeability of harm from take-home exposure to those whose contact with an employer’s workers “is not merely incidental, such as members of their household or long-term occupants of the residence.”
While the decision may be discouraging to defendants, the Court cautions that this requires a case-by-case analysis, and another set of facts, such as a situation where contact with the employee is “only casual or incidental,” may produce a different balance of the Rowland factors.
The Court’s Attempt to Distinguish Campbell v. Ford Motor Company
The First District Court of Appeal’s holding in Kesner seems inconsistent with the Second District Court of Appeal’s decision in Campbell, supra, 206 Cal.App.4th 15, 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.” The Kesner court, however, tries to distinguish the Kesner case from Campbell by the fact that Campbell was based on a theory of premises liability and not a claim of negligence in the manufacture of an asbestos-containing product, as in Kesner. The Kesner court further explained that defendant Ford had only a “passive involvement” as owner of a premises at which an independent contractor installed asbestos insulation; unlike Abex, which used asbestos in the products being manufactured at its plant. These distinctions place the injury in Kesner much closer to the defendant’s activities, supporting the Court's finding of a duty of due care against Abex.
Due to the apparent inconsistency between the holdings of Campbell and Kesner, Kesner is the type of case for which the California Supreme Court may grant review. In the alternative, the Supreme Court could use the rare, but available tool of de-publication, so that Kesner would not be citable as precedent. In any event, it is unlikely this will be the last we hear on this issue.