In Haver v. BNSF Railway, 226 Cal. App. 4th 1104 (June 3, 2014), the Second Appellate District, Division 5, reaffirmed the rule in California that premises liability defendants owe no duty of care to protect individuals claiming injury based on "take-home" or "secondary" exposure to toxic substances used at a defendant's facility. Interpreting California precedent, the court held that the no duty rule encompasses all plaintiffs who experienced secondary exposure off the landowner's premises regardless of the frequency of their contact with a worker who was exposed on the premises or the worker's employment relationship with the landowner. The court also distinguished case law holding that product manufacturers, in some circumstances, owe a duty of care in take-home cases.
The Haver plaintiffs brought a wrongful death action based on premises liability claiming that Lynn Haver ("Haver") contracted mesothelioma as a result of "secondary" exposure to asbestos. Plaintiffs alleged that Haver's husband was exposed to asbestos fibers during the course of his work at the facility of defendant BNSF Railway ("BNSF"), that the fibers adhered to his work clothing and that the asbestos was transferred to the couple's home where Haver was subsequently exposed. BNSF demurred arguing that it owed no duty to Haver as a matter of law. Relying on the holding in Campbell v. Ford Motor Co., 206 Cal. App. 4th 15 (2012), the trial court sustained the demurrer without leave to amend. Plaintiffs appealed arguing that Campbell is factually distinguishable, or was incorrectly decided, and that the recent holding in Kesner v. Sup. Ct., 226 Cal. App. 4th 251 (May 15, 2014) compelled a finding of error.
The Haver court rejected the argument that Campbell is distinguishable on its facts because Ms. Haver's husband was an employee of BNSF rather than the employee of an independent contractor. In Campbell, the plaintiff brought a premises liability action against Ford Motor Co. ("Ford") claiming that she contracted mesothelioma as a result of take-home exposure to asbestos. She alleged that her husband and brother encountered asbestos during the construction of a Ford facility in the 1940's and that asbestos was subsequently carried home on their clothing. Ford hired a general contractor, who hired a subcontractor, who hired another subcontractor that employed both plaintiff's husband and brother.
On appeal, Ford argued that it owed no duty to the plaintiff for the negligence of an independent contractor unless it controlled the contractor's work. The Campbell court reframed the issue as "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 owners' business." The Second Appellate District, Division 7, ultimately concluded that strong public policy considerations counseled against imposing a duty of care on property owners for secondary exposure. Campbell made clear that its finding of no duty applied broadly to the family members of all workers on a property owner's premises and did not turn on the worker's status as an employee of an independent contractor.
The court next dismissed the argument that Campbell was incorrectly decided. In doing so, the court noted that Campbell's conclusion is consistent with the majority view held by other states, including Georgia and New York.
Finally, the court determined that the First Appellate District's recent holding in Kesner did not require reversal and was not in conflict with Campbell. In Kesner, the plaintiff's uncle worked at a facility owned by defendant Pneumo-Abex ("Abex") and brought home work clothing laden with asbestos used in the manufacture of Abex's asbestos-containing brake linings. Plaintiff was exposed during regular visits to the uncle's home. The complaint alleged that Abex was negligent in its manufacture of the linings. Under these circumstances, and following application of the factors outlined in Rowland v. Christian, 69 Cal. 2d 108 (1968), the court found that Abex owed a duty to the plaintiff. However, the court's holding is limited to the conclusion that manufacturers of toxic products have a duty of care to secondary exposure plaintiffs having extensive contact with a manufacturer's employee who is exposed to those toxins. In contrast, Campbell's no duty holding applies to claims of secondary exposure based in premises liability.
Haver is a further decision of the Second Appellate District holding that premises defendants have no duty to take-home exposure plaintiffs. It remains to be seen whether other appellate courts will follow suit. If not, the California Supreme Court may decide to weigh in on the issue. For now, however, Haver provides premises liability defendants with authority for refuting arguments attempting to restrict application of Campbell to family members of independent contractors. Haver also confirms that Kesner does not conflict with Campbell and is limited to certain secondary exposure claims made against manufacturers of asbestos-containing products.