California High Court to Decide Duty in Take Home Asbestos Exposure Cases

In recent years, there have been a growing number of lawsuits in which it is alleged that someone developed mesothelioma as a result of exposure to asbestos fibers transported into the home by a relative.  An increasing number of courts have held that a premises owner owed no duty as a matter of law to the relatives and spouses of the worker who brought home asbestos. See, e.g., Bootenhoff v. Hormel Foods Corp., CIV-11-1368-D (W.D. Okla. Aug. 1, 2014) (finding premises owner had no duty to spouse and granting motion for summary judgment).  In California, there is a split on the issue, and it is anticipated that the California Supreme Court may soon resolve the split.

Campbell – No Duty to Take Home Exposure Plaintiffs

In May of 2012, the California Court of Appeal, Second District, Division 7, held that a property owner has no 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. Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 34, 141 Cal. Rptr. 3d 390, 405 (2012), as modified on denial of reh’g (June 19, 2012).

Kesner– Manufacturer has Duty to Take Home Exposure Plaintiffs

In May of 2014, the California Court of Appeal distinguished Cambpell and held that, while a premises owner has no duty to take home exposure plaintiffs, manufacturers do. Kesner v. Superior Court, 171 Cal. Rptr. 3d 811, 819 (Ct. App. 2014) review granted and opinion superseded sub nom. Kesner v. S.C. (Pneumo Abex LLC), S219534 (Cal. Aug. 20, 2014) (“in holding that a duty exists in this case, we emphasize the obvious—that the existence of the duty is not the same as a finding of negligence.”)

Haver – Campell Was Correctly Decided

In June of 2014, the California Court of Appeal, Second District, Division 5, noted that “Campbell was correctly decided” and affirmed the trial court’s dismissal based on a premise owner having no duty to spouses and relatives in take home exposure cases.   Haver v. BNSF Ry. Co., 172 Cal. Rptr. 3d 771, 775 (Ct. App. 2014), review filed (July 15, 2014), review granted and opinion superseded sub nom. Haver v. BNSF R. Co., S219919, 2014 WL 4100140 (Cal. Aug. 20, 2014). In Haver, the court acknowledged the Kesner opinion, but noted that the issue before it involved only a claim of premises liability and that “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action.”  Id.

The California Supreme Court is set to take up the issue, and we are anxious to see how the issue is resolved.

(Hat Tip: @Legal_Alerts and Sedwick).