Swanson v. Simpson Timber CA2/3 ( 2013 )

Filed 10/2/13 Swanson v. Simpson Timber CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ALBERTA SWANSON, Individually and B244266
as Successor, etc.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC438035)
v.
SIMPSON TIMBER COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Amy Hogue, Judge. Affirmed.
The Arkin Law Firm, Sharon J. Arkin; Farrise Firm and Simona A. Farrise for
Plaintiffs and Appellants.
Foley & Mansfield, Stephen J. Foley and Keith M. Ameele for Defendant and
Respondent.
_________________________
In Campbell v. Ford Motor Co. (2012) 206 Cal. App. 4th 15 (Campbell), the court
applied the Rowland v. Christian (1968) 69 Cal. 2d 108 (Rowland) factors, as further
clarified in Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764 (Cabral), to hold 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.”1 (Campbell, supra, at p. 34.) In this secondary asbestos case, we must
determine whether to follow Campbell in an action against a premises owner brought by
its employee who initially was exposed to asbestos used in manufacturing the premises
owner’s products, but also allegedly was secondarily exposed off the premises to
respirable asbestos on his work clothes or on his son’s work clothes, who also was an
employee.
Although the factual circumstances differ here, like Campbell, we conclude that
based upon the Rowland public policy factors, a premises owner has no duty to protect an
employee from secondary exposure to asbestos off the premises arising from his
association with a family member and fellow employee who wore asbestos-contaminated
work clothes home. To hold otherwise would impose limitless liability on premises
owners. We further conclude an employee’s secondary asbestos exposure when wearing
home his own work clothes is a collateral or derivative injury barred by the exclusivity
provisions of the Workers Compensation Act. Accordingly, we affirm the trial court’s
judgment of nonsuit.
FACTUAL AND PROCEDURAL BACKGROUND
Generally, in secondary asbestos exposure cases against a premises owner, the
theory of liability is that a worker brought home asbestos dust and fibers on his work
clothes or person and a family member who never set foot on the premises suffered an
asbestos-related illness. (Campbell, supra, 206 Cal.App.4th at p. 30.) In this case, the
plaintiff was an employee who was exposed to asbestos while working on the premises
1
This exposure also is referred to as “bystander,” “take home,” or “transmission
asbestos exposure.”
2
and is alleging secondary asbestos exposure off the premises when he and his son brought
home respirable asbestos on their work clothes.
1. Facts
John Swanson died of lung cancer allegedly caused by asbestos exposure. He
worked at the Simpson Timber Company (the company) from 1947 to 1975. The
company used asbestos as a component in the manufacturing of its compressed insulating
boards and ceiling tiles.2 The boards and ceiling tiles were manufactured in the
insulation board plant. Swanson worked at the plant as a fork lift operator and later
became lead man.
Joseph Swanson,3 the decedent’s son, worked at the plant for three months in 1967
and again for a few months in 1969. Joseph worked on the production line.
The company did not provide its employees with work clothes, masks, and
respirators, or a changing room and showers. Both Swanson and Joseph allegedly had
asbestos dust and fibers on their work clothes, and the dust and fibers were deposited on
the floor, couches, and chairs in their family home and in the car they drove to and from
work.
2. Swanson’s Primary Exposure Claim Barred by Workers’ Compensation
Swanson’s surviving spouse, acting as his successor in interest, and his heirs
(appellants) filed a complaint alleging negligence, strict liability, breach of warranties,
premises liability, fraud, conspiracy, loss of consortium, and wrongful death against
numerous defendants. The negligence cause of action against the premises defendants,
2
To support this fact, appellants cite to 23 record citations. We have reviewed all
of these citations and only two actually support this fact. It is counsel’s duty to refer the
reviewing court to the part of the record that supports her clients’ contentions on appeal.
(Cal. Rules of Court, rule 8.204(a)(1)(C).) The purpose of requiring record citations is
not merely formulaic. Rather, it is to allow the court to find facts in the record when
evaluating arguments in the brief. (City of Lincoln v. Barringer (2002) 102 Cal. App. 4th
1211, 1239 & fn. 16.)
3
Because father and son share the same surname, for clarity we refer to Swanson’s
son as “Joseph.” We mean no disrespect.
3
which included the company, alleged the premises owners caused asbestos and asbestos-
containing products to be used on the premises either by its own workers or independent
contractors. The complaint further alleges it was foreseeable that in performing these
acts, dangerous and toxic asbestos dust and fibers would be released into the air creating
an unreasonable risk of harm.
The trial court concluded that the claims against the company arising from
Swanson’s asbestos exposure while working on the premises were barred by the
Workers’ Compensation Act. Although not alleged, the theory of liability then shifted to
secondary asbestos exposure.
3. Nonsuit on Premises Liability Claim for Secondary Asbestos Exposure
Citing Cottle v. Superior Court (1992) 3 Cal. App. 4th 1367, the trial court
employed a procedure to address the viability of the secondary asbestos exposure theory.
Labeled an “offer of proof,” the court also asked the parties to brief Campbell to
determine whether the company owed a duty to Swanson for injuries caused by
secondary asbestos exposure.
The trial court concluded the offer of proof would not sustain the remaining cause
of action for premises liability following Campbell and set a briefing schedule for a
motion for nonsuit. The trial court granted the motion for nonsuit, concluding the
premises liability claim arising from secondary asbestos exposure failed as a matter of
law under Campbell and was preempted by the Workers’ Compensation Act.
Judgment of nonsuit was entered and this timely appealed followed.4
4
Appellants note their objection to the procedures employed by the trial court.
Because they do not present argument on this point, any perceived procedural error has
been forfeited. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1245, fn. 14.) In addition,
when setting forth the standard of review, appellants state they specifically reserved their
right to reopen their case in order to remedy any evidentiary defects. The cited reference
to support the request to reopen their case does not describe the evidence or provide an
explanation as to how the evidence would cure the deficiencies. (Alpert v. Villa Romano
Homeowners Assn. (2000) 81 Cal. App. 4th 1320, 1337-1338.) Thus, the record does not
indicate that the offer of proof would have changed the legal theories upon which the trial
court granted the judgment of nonsuit.
4
DISCUSSION
1. Standards of Review and Governing Premises Liability Principles
Although this appeal is from a judgment of nonsuit, we are presented with legal
questions, which are reviewed de novo on appeal.5 (Cabral, supra, 51 Cal.4th at p. 770;
see Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal. App. 4th 710, 718-719.)
“The general rule in California is that ‘[e]veryone is responsible . . . for an injury
occasioned to another by his or her want of ordinary care or skill in the management of
his or her property or person . . . .’ ” (Cabral, supra, 51 Cal.4th at p. 771; Civ. Code,
§ 1714, subd. (a).) A landowner owes a duty to exercise reasonable care to maintain the
property in such a manner as to avoid exposing others to an unreasonable risk of injury.
(Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 1156.) A landowner’s duty of care to avoid
exposing others to a risk of injury is not limited to injuries that occur on premises owned
or controlled by the landowner; “the duty of care encompasses a duty to avoid exposing
persons to risks of injury that occur off site if the landowner’s property is maintained in
such a manner as to expose persons to an unreasonable risk of injury offsite. [Citations.]”
(Barnes v. Black (1999) 71 Cal. App. 4th 1473, 1478-1479.)
As the Supreme Court stated in Cabral, supra, 51 Cal. 4th 764, the Rowland court
identified several factors that, when balanced together, may justify a departure from the
fundamental principle embodied in Civil Code section 1714. (Cabral, at p. 771.) The
Rowland factors are: “the foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the
policy of preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with resulting
5
In reviewing a judgment of nonsuit, we view the evidence in the light most
favorable to appellants and affirm only if appellants could not have prevailed at trial even
if the jury had accepted all appellants’ evidence as true and resolved all factual conflicts
in appellants’ favor. (Michel v. Moore & Associates, Inc. (2007) 156 Cal. App. 4th 756,
761.)
5
liability for breach, and the availability, cost, and prevalence of insurance for the risk
involved.” (Rowland, supra, 69 Cal.2d at p. 113; see also Cabral, supra, at p. 771.)
Courts should create an exception to the general rule of Civil Code section 1714 only
where “ ‘clearly supported by public policy.’ ” (Cabral, supra, at p. 771; Rowland,
supra, at p. 112.)
The Rowland factors determine the scope of a duty owed whether the risk of harm
occurs on the landowner’s premises or off the premises. (Barnes v. Black, supra,
71 Cal.App.4th at p. 1479.) While Rowland rejected rigid classifications to determine a
premises owner’s duty, the proper test to be applied is whether in the management of the
property, the premises owner has acted reasonably in view of the probability of injury to
others. (Rowland, supra, 69 Cal.2d at p. 119.)
2. Campbell Held a Premises Owner has No Duty to Protect Family Members of
Workers on its Premises from Secondary Asbestos Exposure
Campbell addressed the issue of “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.” (Campbell, supra, 206 Cal.App.4th
at p. 29.) Employing the Rowland factors, the Campbell court concluded that the
premises owner did not owe a duty.
In Campbell, Eileen Honer’s father and brother worked as asbestos insulators in
the late 1940’s during the construction of one of Ford’s assembly plants. (Campbell,
supra, 206 Cal.App.4th at p. 20.) More than 55 years later, Honer was diagnosed with
mesothelioma and filed a complaint stating a premises liability cause of action, alleging
her father and brother were exposed to asbestos-containing products that caused their
clothing to be contaminated with asbestos fibers. (Ibid.) Honer allegedly was exposed to
the asbestos fibers because of her direct and indirect contact with her brother and father,
as well as her contact with their clothing. She washed her father’s and brother’s clothes
and would first shake out the clothes because they were “ ‘dirty’ ” and “ ‘dusty,’ ” and
“ ‘nasty.’ ” (Ibid.)
6
Before the case was presented to the jury, Ford requested a jury instruction based
upon Privette v. Superior Court (1993) 5 Cal. 4th 689, stating that a premises owner is not
liable to the plaintiff for injuries caused by the actions of independent contractors on
Ford’s premises unless Ford affirmatively contributed to plaintiff’s alleged injury.
(Campbell, supra, 206 Cal.App.4th at p. 23.) The trial court refused the instruction.
(Ibid.) By special verdict, the jury concluded that Ford’s negligence was a substantial
factor in causing Honer’s injury, and Ford was responsible for 5 percent of her damages.
(Ibid.) Ford appealed, relying on the legal principles in its rejected jury instruction to
argue it owed no duty to Honer. (Id. at pp. 28-29.)
As noted, the Campbell court reframed the issue Ford presented and analyzed the
Rowland factors to conclude no duty was owed. Addressing the first three Rowland
factors, that is, foreseeability of harm to the plaintiff, degree of certainty that the plaintiff
suffered injury, and closeness of the connection between the defendant’s conduct and the
injury suffered, the Campbell court reiterated that foreseeability alone was not enough to
impose a duty. (Campbell, supra, 206 Cal.App.4th at pp. 29-32.) Ford acknowledged
the second factor that Honer suffered asbestos-caused harm. But, even if it were
foreseeable to Ford that workers on its premises could be exposed to asbestos dust and
fibers, the third factor addressing the “ ‘closeness of the connection’ ” between Ford’s
conduct (hiring workers) and the injury to a family member was “attenuated.” (Id. at
p. 31.) In a footnote, the court stated: “Although our analysis does not turn on this
distinction, we note that in this case, the relationship between Ford’s conduct and the
injury Honer suffered is even more attenuated inasmuch as Ford hired a general
contractor to perform the work, that general contractor hired a subcontractor, that
subcontractor hired another subcontractor, and that subcontractor employed Honer’s
father and brother.” (Ibid., fn. 6.)
Because the existence of a duty is a combination of foreseeability of the risk and a
weighing of public policy considerations, the Campbell court addressed the remaining
factors outlined in Rowland, concluding “strong public policy considerations counsel
against imposing a duty of care on property owners for such secondary exposure.”
7
(Campbell, supra, 206 Cal.App.4th at p. 32.) Ford’s negligence did not rise to the level
of moral culpability. (Ibid.) As for the next two Rowland factors, that is, the extent of
the burden to the defendant, and the consequences to the community if the court imposes
on a particular defendant a duty of care toward the plaintiff, these factors weighed
heavily against Honer. (Ibid.) The court noted the difficulty with these factors is
drawing the line between persons to whom a duty is owed and those persons to whom no
duty is owed.
Relying on the analysis in Oddone v. Superior Court (2009) 179 Cal. App. 4th 813,
822, describing the difficulty in arbitrarily determining the scope of the duty to those
secondarily exposed to toxic chemicals, the Campbell court stated, “in a case such as
Honer’s, where the claim is that the laundering of the worker’s clothing is the primary
source of asbestos exposure, the class of secondarily exposed potential plaintiffs is far
greater, including fellow commuters, those performing laundry services and more.”
(Campbell, supra, 206 Cal.App.4th at pp. 32-33.) Imposing such a duty would be
uncertain and potentially large in scope. Campbell also cited with approval cases from
other jurisdictions that have rejected the imposition of a duty on premises owners for
secondary asbestos exposure, recognizing that tort law must draw a line between the
competing policy considerations of providing a remedy to everyone who is injured and
extending limitless liability. (Id. at p. 34.) Accordingly, the Campbell court declined to
impose a duty.
3. Campbell and Whether the Company Owes a Duty
Appellants contend Campbell does not apply, principally arguing that Campbell
was limited to a premises owner’s duty to an independent contractor and a different
analysis of the Rowland factors applies when considering a premises owner’s duty to an
employee who is secondarily exposed to asbestos used to manufacture the company’s
product. Appellants also contend Campbell overlooked the body of case law imposing a
duty on the premises owner for secondary asbestos exposure based upon the
foreseeability of the risk of injury to a family member. We discuss each contention,
concluding the Rowland public policy factors are even more compelling here than in
8
Campbell. In reaching this conclusion, we solely focus on the theory that an employee
(Joseph) brought home asbestos dust and fibers on his work clothes and secondarily
exposed another employee and family member (Swanson). We discuss the alternative
secondary self-exposure theory that Swanson brought home asbestos dust and fibers on
his work clothes, post at pages 14-16.
a. Campbell Did Not Turn on the Worker’s Employment Status
Appellants contend that Campbell is not applicable because its holding is limited
to a premises owner’s duty to the family member of an independent contractor. The issue
addressed in Campbell is the duty of a premises owner to family members injured off
premises from secondary asbestos exposure. The Campbell court unequivocally rejected,
and did not address, Ford’s argument that because it owed no duty to Honer’s father and
brother as independent contractors, it owed no duty to Honer. (Campbell, supra,
206 Cal.App.4th at p. 29.) Therefore, the Campbell court did not conclude, as appellants
suggest, that Ford’s lack of control militated against imposing a duty. Campbell’s only
reference to the independent contractor status of Honer’s father and brother was in a
footnote, stating “our analysis does not turn on this distinction.” (Campbell, at p. 31,
fn. 6.)
Appellants also improperly read more into the Campbell court’s modification
order to support their argument. Initially, Campbell framed the issue as the duty of an
employer “ ‘to protect family members of employees from secondary exposure to
asbestos used during the course of the employer’s business.’ ” (Italics added.) The
modification of “employees” to “workers” and “employer’s business” to “property
owner’s business,” is consistent with the facts of that case. (Campbell, supra,
206 Cal.App.4th at p. 31, fn 6.) Had the Campbell court intended to determine the duty a
premises owner owed to family members of an independent contractor, it would have
decided the issue Ford presented to the court for review.
Appellants’ reliance on Olivo v. Owens-Illinois, Inc. (N.J. 2006) 895 A.2d 1143undercuts their argument that employment status is determinative when evaluating the
duty of a premises owner to family members who have been secondarily exposed to
9
asbestos. In Olivo, the New Jersey Supreme Court decided the issue presented in
Campbell, concluding a premises owner has a duty to the wife of an independent
contractor who laundered her husband’s work clothes based on the foreseeable risk of
exposure from asbestos brought home on contaminated clothing.6 (Id. at pp. 1146, 1149;
see contra, Van Fossen v. MidAmerican Energy Co. (Iowa 2009) 777 N.W.2d 689, 699
[premises owner owed no duty to the household member of an independent contractor
exposed to asbestos fibers and dust taken home on the independent contractor’s clothes].)
Unlike Campbell, Olivo also addressed the premises owner’s argument that it did not owe
a duty to the plaintiff who was an employee of an independent contractor.7 (Olivo v.
Owens-Illinois, Inc., supra, at pp. 1150-1151.)
b. Rowland Compels the Conclusion No Duty is Owed
Aside from pointing out the employment status distinction, which was not
determinative in Campbell, appellants contend the analysis of the Rowland factors differs
here because the company’s moral culpability, a public policy factor, is greater as it
manufactured asbestos-containing products. Appellants maintain that, unlike Ford, the
company had absolute control over the release of asbestos fibers in its manufacturing
plant. Appellants overlook the facts in Campbell in which “Ford knew asbestos was
being installed on its premises,” and “[a] Ford employee regularly checked on the
progress of the insulation work.” (Campbell, supra, 206 Cal.App.4th at pp. 20-21.) But,
even if this factor does not militate in the company’s favor, as it did in Campbell, the
6
Appellants also rely on Chaisson v. Avondale Industries, Inc. (La.App. 4 Cir.
01/31/07) 947 So. 2d 171, which is factually distinguishable. In Chaisson, the
independent contractor hired by Union Carbide, the premises owner, contended it did not
owe a duty to its employee because Union Carbide was responsible for guarding against
asbestos exposure. (Id. at p. 181.) The court relied on Olivo and concluded the
independent contractor owed a duty to its employee’s family members in spite of Union
Carbide’s own breach of duty. (Id. at pp. 183-184.)
7
On this second theory, the New Jersey Supreme Court remanded the case for
further proceedings because a factual issue existed as to the extent of the duty Exxon
Mobil owed to the plaintiff. (Olivo v. Owens-Illinois, Inc., supra, 895 A.2d at p. 1151.)
10
remaining Rowland public policy factors weigh more heavily in the company’s favor than
these factors did in Campbell.
When assessing the burden to the premises owner and the consequences to the
community if a duty of care is imposed on the particular defendant toward the plaintiff,
we agree with the Campbell court that it is hard to draw the line between the class of
persons to whom a duty is owed and those persons to whom a duty is not owed. Would
the duty owed apply to all family members, some of whom may not be in contact with the
exposed person, or to all household members, some of whom may not be family
members? In Campbell, laundering the worker’s clothing was the primary source of
asbestos exposure, and the class of secondarily exposed plaintiffs was far greater than just
family members, “including fellow commuters, those performing laundry services and
more.” (Campbell, supra, 206 Cal.App.4th at pp. 32-33.)
Here, the class of secondarily exposed plaintiffs is even greater than in Campbell
because Swanson allegedly was exposed by coming into contact with asbestos fibers on
Joseph’s work clothes away from the premises in the car driving to and from work and at
home. Under these circumstances, the class of secondarily exposed plaintiffs includes
household members, guests, and any person who has come into contact with the
employee and his or her asbestos-contaminated clothes. Joseph potentially could cut a
wide swath by taking a bus home from work, dropping into the pharmacy or grocery store
after work, or attending a school meeting or city hall meeting before going home for the
day. Imposing a duty under these circumstances to persons who may have come into
contact with an employee wearing asbestos-contaminated work clothes saddles the
premises owner with a burden of uncertain and limitless liability. Thus, in a case such as
this one, in which an employee alleges secondary asbestos exposure by coming into
contact with asbestos fibers on the work clothes of another employee away from the
premises, we hold the premises owner owes no duty. We are not confronted with a case
similar to Campbell in which a family member, who has never set foot on the premises, is
repeatedly and regularly exposed while laundering asbestos-contaminated work clothes,
11
and therefore make no determination on whether a duty is owed under any other
circumstances.
c. Out-of-State Cases Are Not Persuasive
Appellants contend Campbell is out of step with the majority of other state courts
addressing this issue and employing similar Rowland factors with an emphasis on
foreseeability. None of these cited cases was brought by an employee who was initially
exposed to asbestos during the course of the premises owner’s business and alleged
secondary asbestos exposure by coming into contact with asbestos fibers on the work
clothes of another employee away from the premises. Like Campbell, the majority of the
cited cases address a duty owed to a family member who has never set foot on the
premises and is regularly and repeatedly exposed while laundering asbestos-contaminated
clothes.8
Even courts focusing on foreseeability and concluding a duty is owed limit the
scope of the duty. In Olivo v. Owens-Illinois, Inc., supra, 895 A.2d 1143, the court
stated, “[t]he duty we recognize in these circumstances is focused on the particularized
foreseeability of harm to plaintiff’s wife, who ordinarily would perform typical
household chores that would include laundering the work clothes worn by her husband.”
(Id. at p. 1150.) In Satterfield v. Breeding Insulation Co. (Tenn. 2008) 266 S.W.3d 347,
the Tennessee Supreme Court held, “the duty we recognize today extends to those who
regularly and repeatedly come into close contact with an employee’s contaminated work
8
Appellants cite one exception. In Zimko v. American Cyanamid (La.App. 4 Cir.
06/08/05) 905 So. 2d 465, the Louisiana Court of Appeal held the premises owner owed a
duty to the employee’s son who was allegedly exposed to asbestos from his father’s work
clothes. (Id. at p. 483.) The holding was reaffirmed in Chaisson v. Avondale Industries,
Inc., supra, 947 So.2d at pp. 181-183. Zimko analyzed foreseeability, but in Louisiana a
“ ‘no duty’ defense in a negligence case is seldom appropriate.” (Zimko v. American
Cyanamid, supra, at p. 482.) The appellate court noted “resolution of a negligence case
based on a finding that a defendant has ‘no duty’ should be reserved for the exceptional
situation,” in which there is a categorical rule, such as the “ ‘failure to act, injuries to
unborn victims, negligently inflicted mental anguish or purely economic harm
unaccompanied by physical trauma to the claimant or his property.’ ” (Id. at pp. 482-483
& fn. 19, italics omitted.)
12
clothes over an extended period of time, regardless of whether they live in the
employee’s home or are a family member.”9 (Id. at p. 374.)
Although appellants criticize the Campbell court’s citation to and reliance on
Oddone v. Superior Court, supra, 179 Cal. App. 4th 813, the cited cases limiting the scope
of the duty illustrate and recognize the difficulty in drawing the line between those
persons to whom a duty is owed and those persons to whom no duty is owed. Olivo
appears to limit the duty owed based on the foreseeability of a spouse laundering her
husband’s work clothes, which leaves unresolved the Campbell court’s concern as to
whether the duty owed includes all persons who regularly and repeatedly launder the
husband’s work clothes. Satterfield limited the duty owed to those who “regularly and
routinely” come into contact with the asbestos-contaminated work clothes “over an
extended period of time,” which, as the Oddone court notes is not a bright line rule.
(See Oddone v. Superior Court, supra, 179 Cal.App.4th at p. 822.) Would a premises
owner owe a duty to fellow commuters in a van pool or a train who “regularly and
routinely” come into contact with asbestos-contaminated work clothes? Drawing the line
proves even more difficult where the exposure is based on mere association with, or
contact with, the employee’s asbestos-contaminated clothes because even if the class of
secondarily exposed plaintiffs is limited to the household, every person entering the
house is a potential plaintiff. As in Campbell, we believe the line has been properly
drawn between the competing public policy considerations of providing a remedy to
everyone who is injured and extending tort liability almost without limit. Under the
circumstances presented here, we conclude the company owed no duty to Swanson to
9
Appellants’ two other cited cases concluded the complaint was insufficient to
establish a duty was owed to the spouse based on her exposure to take home asbestos on
her husband’s clothes (Simpkins v. CSX Transportation, Inc. (Ill. 2012) 965 N.E.2d 1092,
1099-1100), and as a factual matter a family member who launders clothes could be a
foreseeable victim of asbestos exposure depending on the particular circumstances of the
case. (Rochon v. Saberhagen Holdings (Wash.Ct.App., Aug. 13, 2007, No. 58579-7-I)
2007 Wash.App. Lexis 2392.)
13
protect him from secondary asbestos exposure arising from his association with a family
member and fellow employee who wore asbestos-contaminated work clothes home.
4. Workers’ Compensation Exclusivity Bars Secondary Self-Exposure Injury
As an alternative theory of secondary asbestos exposure, appellants contend that
Swanson was injured off premises (and outside the employment relationship) when he
wore his asbestos-contaminated work clothes home. This secondary self-exposure theory
was not raised or addressed in Campbell or any of appellants’ cited cases imposing a duty
on a premises owner for secondary asbestos exposure. In resolving this issue, we must
decide if Swanson’s secondary self-exposure is outside the reach of workers’
compensation exclusivity rule. As the Supreme Court stated in Charles J. Vacanti, M.D.,
Inc. v. State Comp. Ins. Fund (2001) 24 Cal. 4th 800, while the theoretical compensation
bargain in the workers’ compensation laws seems to be straightforward, the “unabated
flow of published decisions clarifying the scope of workers’ compensation exclusivity
suggests considerable confusion as well as innovative lawyering.” (Id. at p. 811.)
As a general rule, an employee who sustains an industrial injury “arising out of
and in the course of the employment” is limited to recovery under the workers’
compensation system. (Lab. Code, §§ 3600, subd. (a), 3602, subd. (a).) Injuries caused
by unsafe working conditions are compensable solely under workers’ compensation, even
if the employer failed to correct known safety violations. (Gunnell v. Metrocolor
Laboratories, Inc., supra, 92 Cal.App.4th at pp. 720-723.) The basis for the exclusivity
rule “is a presumed ‘compensation bargain,’ pursuant to which the employer assumes
liability for industrial personal injury or death without regard to fault in exchange for
limitations on the amount of that liability. The employee is afforded relatively swift and
certain payment of benefits to cure or relieve the effects of industrial injury without
having to prove fault but, in exchange, gives up the wider range of damages potentially
available in tort.” (Shoemaker v. Myers (1990) 52 Cal. 3d 1, 16; see also LeFiell
Manufacturing Co. v. Superior Court (2012) 55 Cal. 4th 275, 279.)
In Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal. 4th 800,
the Supreme Court set forth a two-part test to determine “whether the alleged injury falls
14
within the scope of the exclusive remedy provisions.” (Id. at p. 811.) First, is the injury
“collateral to or derivative of a personal ‘injury sustained and arising out of the course of
employment.’ ” (Id. at p. 812.) Second, do “the alleged acts or motives that establish the
elements of the cause of action fall outside the risks encompassed within the
compensation bargain.” (Id. at pp. 811-812.) “Where the acts are ‘a “normal” part of the
employment relationship’ [citation], or workers’ compensation claims process [citation],
or where the motive behind these acts does not violate a ‘fundamental policy of this state’
[citation], then the cause of action is barred” by the exclusivity provisions of the
Workers’ Compensation Act. (Id. at p. 812.) Employing this test, Swanson’s secondary
self-exposure injury falls within the exclusivity provisions of the Workers’ Compensation
Act.
Here, the alleged compensable injury arises from the unsafe working conditions in
which Swanson was exposed to respirable asbestos fibers and dusts, along with the
company’s failure to provide work clothes, respirators, and masks or changing rooms and
showers to prevent asbestos-related injuries. The alleged secondary self-exposure injury
occurred off the premises when Swanson wore his asbestos-contaminated work clothes
home. The secondary self-exposure injury is derivative as it is dependent upon the
compensable injury arising from and in the course and scope of Swanson’s
employment.10 (See LeFiell Manufacturing Co. v. Superior Court, supra, 55 Cal.4th at
10
Citing Weinstein v. St. Mary’s Medical Center (1997) 58 Cal. App. 4th 1223, 1235-
1236, the Supreme Court noted that courts have allowed tort claims in cases where the
aggravation of an existing workplace injury did not occur in the course and scope of
employment. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th
at p. 814.) In Weinstein, the plaintiff worked for the hospital and suffered injuries
covered by the Workers’ Compensation Act. (Weinstein, supra, at p. 1226.) The
plaintiff returned to the hospital for treatment and slipped and fell on the floor in one of
the hospital’s hallways. (Ibid.) The plaintiff filed a premises liability action against the
hospital, seeking compensatory damages for the slip and fall. (Id. at p. 1227.) Invoking
the dual capacity doctrine, the court held the exclusive remedy rule did not apply because
Weinstein’s injury occurred while seeking treatment from a medical provider who also
happened to be her employer. (Id. at pp. 1233-1234.) The hospital owed Weinstein the
same duty of care it owed to any other patient. (Id. at p. 1234.) This is not a case in
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pp. 280, 285.) Swanson’s secondary self-exposure from the asbestos fibers and dust on
his work clothes would not have occurred if he were not exposed to asbestos in the course
and scope of his employment. Contrary to appellants’ argument, the collateral injury
doctrine is not limited to loss of consortium claims. (See Charles J. Vacanti, M.D., Inc.
v. State Comp. Ins. Fund, supra, 24 Cal.4th at pp. 814-815.) Thus, Swanson’s alleged
injury from secondary self-exposure falls within the scope of the exclusive remedy
provision. No exception applies because the acts that give rise to this claim are a part of
the employment relationship. Accordingly, although appellants have presented a novel
theory, the premises liability claim arising from secondary self-exposure is subject to
exclusivity.
which there is a distinction between the duty owed to Swanson as an employee and a
separate common law duty owed outside the employment relationship.
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DISPOSITION
The judgment is affirmed. No costs are awarded on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
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