The Supreme Court of California has overturned prior case law and imposed broad new liability on “employers and premises owners” in “take-home” toxic exposure cases. In a lengthy opinion issued in the consolidated Kesner v. Superior Court and Haver v. BNSF Railway Co. matters, the Court stated:

We hold that the 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. 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 have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. (Kesner v. Superior Court (December 1, 2016, #S219534) ___ Cal.4th ___ [pp. 2-3].)

Two prior opinions that had limited a defendant’s duty in “take-home” cases – Oddone v. Superior Court (2009) 179 Cal.App.4th 813 (film processing chemicals) and Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 (asbestos) – were overturned to the extent they were inconsistent.

Analysis Significantly, this new ruling narrows the class of potential plaintiffs to “household members,” as opposed to other individuals who may have transiently come into contact with the allegedly exposed person. The Court held 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 foreseeable in close and sustained contact with the worker over a significant period of time.” (Kesner, supra, p. 23.) (Emphasis supplied.)

However, the primary holding also extends to both “employers and premises owners.” This language is not limited to specific types of facilities or industries, such as plants where certain products were manufactured, in contrast to locations where toxic substances were merely incidentally on-site. The Court added: “We have never held that the physical or spatial boundaries of a property define the scope of a landowner’s liability.” (Id. at p. 29.)

Neither is the case limited to “employees.” The duty extends to “on-site workers” apparently irrespective of their employment status. It would not appear that this language covers “visitors” or “guests” who may have been present but did not perform any “work.” (Id. at pp. 2-3, 38.)

This ruling applies whether the underlying claim is for “negligence” or “premises liability.” “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Id. at p. 28.) The Court did, however, expressly state that its opinion does not abrogate other existing defenses, including the distinction between a “landowner” and “possessor,” and the general superseding liability of an independent contractor. (Id. at pp. 31-32.)

Takeaways California asbestos defendants in “take-home” cases may now anticipate that “no duty” defenses at the pleadings or summary judgment stages will be significantly more difficult to prevail upon. The analysis now turns on a fact-dependent “reasonable foreseeability” test, as opposed to the bright-line “no duty” rules permitted by prior cases.

Appellate courts around the country have been split on this issue. At least eight states have focused the inquiry away from foreseeability and more toward public policy concerns, finding a defendant owes no duty to take-home plaintiffs. Delaware and Illinois, for instance, refused to find a duty because of the lack of a special relationship between the defendant and plaintiff. (Reidel v. ICI Americas, Inc., Del., 968 A.2d 17 (2009); Nelson v. Aurora Equipment Co., 391 Ill.App.3d 1036 (2009)), while Maryland and Iowa recognized that extending a duty to a worker’s family member could potentially result in a dramatic expansion of liability that would be incompatible with public policy. (Adams v. Owens-Illinois, Inc., 119 Md.App. 395 (1998); Van Fossen v. Midamerican Energy Co., 777 N.W.2d 689 (Iowa 2009).)

Where the real split in opinion becomes noticeable is within the courts that focus primarily on foreseeability. In viewing the specific knowledge various defendants had at the time of exposure, Texas, Washington, Kentucky, Oklahoma and North Dakota have all found no duty based on lack of foreseeability. However, it is a case-by-case analysis, with courts even within the same state reaching different decisions based on the time of the exposure and the specific defendant.

With this decision, California now joins New Jersey, Tennessee, Washington, Louisiana and Connecticut as states that have held it should have been reasonably foreseeable at the time of the exposure that a worker could carry home asbestos on clothing and expose members of the household. As with the California Supreme Court, these other courts have looked to the 1965 Newhouse study (Epidemiology of Mesothelial Tumors in the London Area, 1965, Muriel L. Newhouse and Hilda Thompson) as evidence that defendants should have known of the risk.