Products Liability: Take-Home Exposure

Kesner v. Superior Court, (First District, May 15, 2014) 2014 WL 1962217, — Cal.Rptr.3d —-, 14 Cal.Daily Op. Serv. 5376, 2014 Daily Journal D.A.R. 6110

A man who contracted mesothelioma filed suit against his uncle’s employer, a brake lining manufacturer, alleging that his disease was caused by exposure to asbestos which his uncle brought home from work on his clothing. Asserting theories of products liability, including negligence, breach of express and implied warranties, and strict products liability, the plaintiff alleged that over a period of several years he was a frequent guest in his uncle’s home, and often spent the night there, and that the uncle would come home in his work clothes covered in asbestos dust. The plaintiff further alleged that his uncle would often play with him and sometimes sleep near him while still in his work clothes, and that his exposure to the asbestos dust was a contributing cause of his disease.

Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the trial court granted the manufacturer’s motion for a nonsuit,  finding that there was no duty to the plaintiff for any exposure to asbestos through contact with an employee, as none of the exposures took place at or inside the defendant’s plant.  However, the court of appeal reversed, holding that under the circumstances a duty of care did extend to members of the employee’s household who were likely to be affected by toxic materials brought home on the worker’s clothing:

[W]e conclude that the likelihood of causing harm to a person with such recurring and non-incidental contact with the employer’s employee, in this case Kesner’s uncle, is sufficient to bring Kesner within the scope of those to whom the employer, in this case Abex, owes the duty to take reasonable measures to avoid causing harm.

We need not question the conclusion in Campbell that under Rowland and Cabral, a landowner owes no duty of care to those coming into contact with persons whose clothing carries asbestos dust from the landowner’s premises. The claim against Ford Motor Company asserted in Campbell was based on Ford’s passive involvement as owner of the plant in which an independent contractor was installing asbestos insulation. Plaintiff’s claim in the present case is not based on a theory of premises liability but on a claim of negligence in the manufacture of asbestos-containing brake linings. While the same Rowland factors are pertinent to the analysis of a negligence claim, the balance that must be struck is not necessarily the same as under a claim of premises liability.

In weighing these competing considerations, the balance falls far short of terminating liability at the door of the employer’s premises. While foreseeability of harm is not in California the exclusive consideration, it is among the most significant, if not the single most significant, factor. And there is a high degree of foreseeability of harm from secondary, or 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…

In concluding that Abex’s duty of care extends to Kesner, a long-term guest in the home of Abex’s employee, we emphasize that our ruling is based on the assumption, required by the standard for reviewing the sufficiency of the allegations of a complaint, that Kesner’s contact with his uncle was extensive. As to such persons, the foreseeability of harm is substantial. As to persons whose contact with an employer’s worker is only casual or incidental, the foreseeability of harm and the closeness of the connection between the defendant’s conduct and the plaintiff’s injury may be so minimal as to produce a different balance of the Rowland factors. We hold that there is a duty under the circumstances alleged in the present case, but we do not address other circumstances that are not before us.

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