Monday, May 19, 2014
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Fourth District Court of Appeal Revives Suit Over Asbestos Exposure
Justices Say Manufacturer’s Duty Extends to Family Member Who Had Frequent Contact With Exposed Worker
By KENNETH OFGANG, Staff Writer
An asbestos manufacturer may be liable to a person who became ill as a result of frequent contact with a person who was exposed to the defendant’s products at work and carried asbestos dust on his clothes as a result, the First District Court of Appeal has ruled.
Div. Three Thursday overturned a nonsuit in favor of Pneumo Abex LLC. Alameda Superior Court Judge John M. True III granted the company’s motion to dismiss the case at the commencement of trial, saying it owed no duty to the plaintiff, who was not exposed to Abex products at any location where those products were made or used.
The appellate panel concluded that Abex owed a duty of care to Johnny Blaine Kesner Jr., who alleges he was exposed to dust from Abex products during his many visits to his uncle, who worked for Abex for more than 30 years and in whose home Kesner was a frequent overnight guest, particularly during a six-year period in the 1970s.
Kesner was diagnosed with mesothelioma in 2011. He sued a number of defendants, including companies for which he himself had worked; the claim against Abex was the only one still pending at time of trial.
‘Take-Home Exposures’
Justice Stuart Pollak wrote for the Court of Appeal, which rejected Abex’s argument for a bright-line rule that a manufacturer owes no duty “to family members of workers for take-home exposures.”
The justice wrote:
“We do not believe that such a broad and unqualified limitation on an employer’s duty accurately states the law. We accept the premise that the prospect of ‘indeterminate liability’ places a limitation on those to whom the duty of exercising reasonable care may extend....We also recognize the difficulty in articulating the limits of that duty and the different conclusions that courts throughout the country have reached when considering claims for secondary exposure to toxics, particularly asbestos, emanating from the workplace. The duty of care undoubtedly does not extend to every person who comes into contact with an employer’s workers, but we conclude that the duty runs at least to members of an employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing. While Kesner was not a member of his uncle’s household in the normal sense, he was a frequent visitor, spending several nights a week in the home.”
Rowland Factors
Pollak cited Rowland v. Christian (1968) 69 Cal.2d 108, which elucidated the factors that must be looked at to determine whether a duty will be imposed as a matter of public policy—foreseeability of harm, degree of certainty of injury, closeness of causal connection between the injury and the breach of alleged duty, the moral blameworthiness of the conduct, the extent to which imposition of duty would prevent future harm, the burden on the defendant and the community if the duty is imposed , and the cost and availability of insurance.
The justice distinguished Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, on which the trial judge relied, and which cited the Rowland factors in concluding that Ford could not be held liable, based solely on its ownership of a plant in which an independent contractor was installing asbestos insulation, to persons who came into contact with asbestos dust carried on the clothing of persons who worked at the plant.
Pollak said he was not questioning Campbell, but said Kesner’s situation requires a different Rowland analysis.
Harm to third parties who have regular contact with those who work around toxic materials “is not unpredictable,” the justice said. And if Abex was aware of the risks of exposure and did nothing about them, as the plaintiff asserted, its conduct was certainly morally blameworthy, he wrote.
Pollak went on to say that the remaining Rowland factors, on balance, support a finding of duty because it will encourage manufacturers to be cautious, will not extend liability indefinitely, and does not expose the makers of products to a risk that cannot be insured against.
The case is Kesner v. Superior Court (Pneumo Abex LLC), 14 S.O.S. 2449.
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