Products Liability: Take Home Exposure

Haver v. BNSF Railway Co., (Second District, June 3, 2014 | As Modified June 23, 2014) 226 Cal.App.4th 1104, 172 Cal.Rptr.3d 771.

The heirs of a woman who died after contracting mesothelioma, throat cancer and progressive lung disease, filed a wrongful death action against her husband’s former employer, contending that she had contracted the disease as a result of secondary exposure to asbestos. The plaintiffs alleged that asbestos from products and equipment on the employer’s premises had adhered to the decedent’s husband’s clothing, tools and vehicles, and that the decedent had inhaled asbestos fibers which had been transferred to the couple’s home.

The defendant demurred to the complaint, contending that under Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 141 Cal.Rptr.3d 390, it owed no duty to protect family members from take-home exposure. The trial court sustained the demurrer without leave to amend and the court of appeal affirmed, rejecting the plaintiffs’ argument that the holding in Campbell applied only to relatives of independent contractors and not employees. The court also distinguished the case from the recent decision in Kesner v. Superior Court (May 15, 2014, No. A136378, 2014 WL 1962217) 226 Cal.App.4th 251, 171 Cal.Rptr.3d 811, which had permitted a take-home exposure claim under products liability principles:

The Campbell court expressly states that the issue “is whether a premises owner has a 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.” (citation) “Workers” includes those employed by the property owner, as well as those employed by independent contractors to work on the premises of the owner. … Nothing in the analysis of the Campbell decision indicates the court waivered from this approach.

The Kesner court … stated that it “need not question the conclusion in Campbell that … a landowner owes no duty of care to those coming into contact with persons whose clothing carries asbestos dust from the landowner’s premises…. 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.” The Kesner court went on to conclude that manufacturers of products containing toxins have a duty of care to persons who have extensive contact with employees exposed to those toxins, and who suffer secondary exposure and injury as a consequence.

The only cause of action before us is for premises liability. Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action. As discussed above, Campbell made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency of their contact with the worker who was exposed on the premises, or the worker’s employment relationship with the landowner.

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