Does owner of business premises owe duty to protect family members of persons who work there from secondary exposure to asbestos incurred by worker on premises, but exposed to family members away from premises?

Posted in: Appellate Practice, Tort Litigation by Steven Vartabedian on

In Haver v. BNSF Railway Co. (filed 6/3/14) B246527, Lynn Haver contracted mesothelioma and died as a result of secondary exposure to asbestos. Her former husband was exposed to products and equipment containing asbestos while working for defendant’s predecessor railway company in the 1970’s. Asbestos evidently adhered to his clothing, and then was transferred to the family home where Lynn was exposed. Survivors of Lynn Haver sued defendant for wrongful death based upon premises liability negligence.

Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the trial court sustained defendant’s demurrer without leave to amend, finding no duty. Survivors appealed arguing (1) Campbell is distinguishable on its facts, or, alternatively, incorrectly decided; and (2) a finding of error is compelled by the recent opinion in Kesner v. Superior Court (filed 5/15/14) A136378. The Court of Appeal, Second Appellate District, Division Five, disagreed, affirming the judgment of dismissal.

The appellate court initially focused on the applicability of Campbell. There, the plaintiff brought a premises liability action against Ford based on her father and brother working for a contractor at a Ford plant construction site where asbestos was present. She was exposed to asbestos while laundering their clothing. While Ford argued there was no duty on the part of the property owner for injuries caused relatives of an employee of an independent contractor for that contractor’s negligence, the Court of Appeal there reversed the overruling of the demurrer on broader grounds. It found strong policy considerations dictated, as a matter of law, that the premises owner had no duty of care for such secondary exposure. The Haver court agreed with this assessment and found the factual difference of direct employment by the premises owner here made no difference in light of the broad holding of Campbell.

The recent Kesner case involved the nephew of an employee of the defendant manufacturer of brake linings; the nephew claimed he contracted mesothelioma from the transfer of asbestos onto his uncle’s clothing, which he was exposed to on a regular basis. He sued on the theory of negligent manufacturing of the brake linings that contained asbestos. There the trial court sustained a demurrer, but the appellate court reversed. Because Kesner involved a different theory of recovery than premises liability, and the Kesner court expressly declined to question the holding of Campbell, Kesner did not affect the analysis in the Haver case.

After reading these cases, I wonder if the analysis is really different when the second hand exposure emanates from a claim of premises liability versus manufacturing liability. Is the latter claim any more foreseeable than the former? Do policy considerations, that cause a company that negligently exposes workers to on-site asbestos not to have a duty to protect the second-hand sufferers, not apply equally to a company that negligently manufactures products that emit asbestos fibers? My sense is that the duty analysis in these types of cases should be the same, and this may in the future be an appropriate matter for the California Supreme Court to take up in light of this apparent conflict of views.

From an appellate practice standpoint, I think this case reiterates an important message as to when a case is truly distinguishable. Too often counsel argue differences in factual differences between cases, when those differences do not matter because of the breadth of the holding in the cited case.

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