Kesner v. Superior Court of Alameda County , 1 Cal. 5th 1132 ( 2016 )

Filed 12/1/16
IN THE SUPREME COURT OF CALIFORNIA
CECELIA KESNER, )
) S219534
Petitioner, )
) Ct.App. 1/3 A136378
v. )
) Alameda County
THE SUPERIOR COURT OF ) Super. Ct. No. RG11578906
ALAMEDA COUNTY, )
)
Respondent; )
)
PNEUMO ABEX, LLC, )
)
Real Party in Interest. )
)
CECELIA KESNER, )
)
Plaintiff and Appellant, )
) Ct.App. 1/3 A136416
v. )
) Alameda County
PNEUMO ABEX, LLC, ) Super. Ct. No. RG11578906
)
Defendant and Respondent; )
)
JOSHUA HAVER, et al. )
) S219919
Plaintiffs and Appellants, )
) Ct.App. 2/5 B246527
v. )
)
BNSF RAILWAY COMPANY, ) Los Angeles County
) Super. Ct. No. BC435551
Defendant and Respondent. )
____________________________________)
1
These two cases ask whether employers or landowners owe a duty of care
to prevent secondary exposure to asbestos. Such exposure, sometimes called
domestic or take-home exposure, occurs when a worker who is directly exposed to
a toxin carries it home on his or her person or clothing, and a household member is
in turn exposed through physical proximity or contact with that worker or the
worker‘s clothing. Plaintiffs in these actions for personal injury and wrongful
death allege that take-home exposure to asbestos was a contributing cause to the
deaths of Lynne Haver and Johnny Kesner, and that the employers of Lynne‘s
former husband and Johnny‘s uncle had a duty to prevent this exposure.
Defendants argue that users of asbestos have no duty, either as employers or as
premises owners, to prevent nonemployees who have never visited their facilities
from being exposed to asbestos used in defendants‘ business enterprises.
After the trial and appellate courts in these two cases reached varying
conclusions as to the existence of this duty, we granted review and consolidated
both cases for oral argument and decision to address the following questions:
Does an employer that uses asbestos in the workplace have a duty of care to
protect employees‘ household members from exposure to asbestos through off-site
contact with employees who carry asbestos fibers on their work clothing, tools,
vehicles, or persons? How, if at all, does this duty differ when the plaintiff states a
claim for premises liability rather than general negligence? If an employer or
premises owner has such a duty, is that duty limited to immediate family members
or to members of the employee‘s household? Or does the duty extend to visitors,
guests, or other persons with whom the employee may come into contact?
We hold that the duty of employers and premises owners to exercise
ordinary care in their use of asbestos includes preventing exposure to asbestos
2
carried by the bodies and clothing of on-site workers. Where it is reasonably
foreseeable that workers, their clothing, or personal effects will act as vectors
carrying asbestos from the premises to household members, employers have a duty
to take reasonable care to prevent this means of transmission. This duty also
applies to premises owners who use asbestos on their property, subject to any
exceptions and affirmative defenses generally applicable to premises owners, such
as the rules of contractor liability. Importantly, we hold that this duty extends only
to members of a worker‘s household. Because the duty is premised on the
foreseeability of both the regularity and intensity of contact that occurs in a
worker‘s home, it does not extend beyond this circumscribed category of potential
plaintiffs.
I.
Johnny Blaine Kesner, Jr., was diagnosed with perotineal mesothelioma in
February 2011. (Because this case involves family members with the same last
name, we use individuals‘ first names for clarity.) Johnny filed suit against a
number of defendants he believed were responsible for exposing him to asbestos
and causing his mesothelioma. These defendants included Pneumo Abex, LLC
(Abex). Johnny‘s uncle, George Kesner, worked at the Abex plant in Winchester,
Virginia, for much of George‘s life, where George was exposed to asbestos fibers
released in the manufacture of brake shoes. According to George, Johnny spent an
average of three nights per week at his uncle‘s home from 1973 to 1979. When
Johnny was at his uncle‘s home, he would sometimes sleep near George or
roughhouse with George while George was wearing his work clothes. Johnny
alleged that his exposure to asbestos dust from the Abex plant, carried home on his
uncle‘s clothes, contributed to his contracting mesothelioma. Johnny died in
December 2014, after the Court of Appeal issued its judgment in this matter.
Cecelia Kesner is his successor in interest.
3
Lynne Haver was diagnosed with mesothelioma in March 2008 and died in
April 2009. Her children, Joshua Haver, Christopher Haver, Kyle Haver, and
Jennifer Morris (the Havers), filed a wrongful death and survival action alleging
negligence, premises owner and contractor liability, and loss of consortium. They
allege that Lynne‘s exposure to asbestos by way of her former husband, Mike
Haver, caused her cancer and death. Mike was employed by the Atchison,
Topeka, and Santa Fe Railway, a predecessor of BNSF Railway Company
(BNSF), from July 1972 through 1974. In his position as fireman and hostler for
BNSF, Mike was exposed to asbestos from pipe insulation and other products.
The Havers allege that Mike carried home these asbestos fibers on his body and
clothing, and that Lynne was exposed through contact with him and his clothing,
tools, and vehicle after she began living with him in 1973.
Mesothelioma is a cancer of the chest and abdomen closely associated with
asbestos exposure. Asbestos can cause disease when an individual inhales or
ingests microscopic asbestos fibers that have been released into the air. Some
forms of asbestos, termed friable, release such fibers upon slight contact;
nonfriable asbestos may release fibers if cut, sawed, or broken. (29 C.F.R.
§ 1926.1101, appen. H (2016).) The Havers and Kesner allege that BNSF and
Abex, through the use or manufacture of asbestos-containing products, created a
risk of harm to the household members of their employees by failing to exercise
reasonable care in their use of asbestos-containing materials.
Neither the Havers‘ nor Kesner‘s suit reached a jury. Abex moved for
nonsuit at the beginning of trial in light of Campbell v. Ford Motor Co. (2012) 206
Cal. App. 4th 15, 34 (Campbell), which 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.‖ The trial court
granted this motion and entered a final judgment in Abex‘s favor on the ground
4
that Abex did not owe a duty to Kesner to prevent his exposure to asbestos.
Kesner both appealed and petitioned the Court of Appeal for a writ of mandate.
The Court of Appeal consolidated the appeal and writ proceeding, and reversed
the trial court‘s grant of a nonsuit.
After the Havers filed suit, BNSF demurred to the complaint, also relying
on Campbell. The trial court sustained the demurrer; the Havers appealed. The
Court of Appeal held that Campbell correctly rejected the claim that premises
owners owe a duty of care to household members who suffer take-home exposure
to asbestos, and distinguished the Court of Appeal‘s decision in Kesner on the
ground that Kesner‘s claim alleged negligence in the manufacture of brake pads,
whereas the Havers‘ claim rested on a theory of premises liability.
We granted review in both cases and consolidated them for argument and
decision in order to determine whether an employer has a duty to members of an
employee‘s household to prevent take-home asbestos exposure on a premises
liability or negligence theory.
II.
A plaintiff in any negligence suit must demonstrate ― ‗a legal duty to use
due care, a breach of such legal duty, and [that] the breach [is] the proximate or
legal cause of the resulting injury.‘ ‖ (Beacon Residential Community Assn. v.
Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568, 573 (Beacon), quoting
United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal. 3d 586, 594.)
Here we are tasked solely with deciding whether Abex or BNSF had a legal duty
to prevent the injuries alleged by Kesner and the Havers.
―Duty is a question of law for the court, to be reviewed de novo on appeal.‖
(Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 770 (Cabral).) ―California
law establishes the general duty of each person to exercise, in his or her activities,
reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)‖ (Id. at
5
p. 768.) Civil Code section 1714, subdivision (a) provides in relevant part:
―Everyone is responsible, not only for the result of his or her willful acts, but also
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, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or herself.‖
(All subsequent statutory references are to the Civil Code unless otherwise
indicated.) ― ‗Courts . . . invoke[] the concept of duty to limit generally ―the
otherwise potentially infinite liability which would follow from every negligent
act . . . .‖ ‘ ‖ (Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 397 (Bily),
quoting Thompson v. County of Alameda (1980) 27 Cal. 3d 741, 750.) The
conclusion that a defendant did not have a duty constitutes a determination by the
court that public policy concerns outweigh, for a particular category of cases, the
broad principle enacted by the Legislature that one‘s failure to exercise ordinary
care incurs liability for all the harms that result. ―The history of the concept of
duty in itself discloses that it is not an old and deep-rooted doctrine but a legal
device of the latter half of the nineteenth century designed to curtail the feared
propensities of juries toward liberal awards.‖ (Dillon v. Legg (1968) 68 Cal. 2d
728, 734.) As a result, ―in the absence of a statutory provision establishing an
exception to the general rule of Civil Code section 1714, courts should create one
only where ― ‗clearly supported by public policy.‘ ‖ (Cabral, supra, 51 Cal.4th at
p. 771, quoting Rowland v. Christian (1968) 69 Cal. 2d 108, 112 (Rowland).)
In determining whether policy considerations weigh in favor of such an
exception, we have said the most important 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
6
consequences to the community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of insurance for the
risk involved.‖ (Rowland, supra, 69 Cal.2d at p. 113.) Because Civil Code
section 1714 establishes a general duty to exercise ordinary care in one‘s
activities, which includes the use of asbestos in one‘s business or on one‘s
premises, we rely on these factors not to determine ―whether a new duty should be
created, but whether an exception to Civil Code section 1714 . . . should be
created.‖ (Cabral, supra, 51 Cal.4th at p. 783.)
Because a judicial decision on the issue of duty entails line-drawing based
on policy considerations, ―the Rowland factors are evaluated at a relatively broad
level of factual generality. . . . [¶] In applying the . . . Rowland factors, . . . we
have asked not whether they support an exception to the general duty of
reasonable care on the facts of the particular case before us, but whether carving
out an entire category of cases from that general duty rule is justified by clear
considerations of policy. . . . [¶] By making exceptions to Civil Code section
1714‘s general duty of ordinary care only when foreseeability and policy
considerations justify a categorical no-duty rule, we preserve the crucial
distinction between a determination that the defendant owed the plaintiff no duty
of ordinary care, which is for the court to make, and a determination that the
defendant did not breach the duty of ordinary care, which in a jury trial is for the
jury to make.‖ (Cabral, supra, 51 Cal.4th at p. 772; see Rest.3d Torts, Liability
for Physical and Emotional Harm, § 7, com. a, p. 78 [―No-duty rules are
appropriate only when a court can promulgate relatively clear, categorical, bright-
line rules of law applicable to a general class of cases.‖].)
In this respect, duty differs from the other elements of a tort. Breach,
injury, and causation must be demonstrated on the basis of facts adduced at trial,
and a jury‘s determination of each must take into account the particular context in
7
which any act or injury occurred. Analysis of duty occurs at a higher level of
generality. In Cabral, we held it was irrelevant to the question of duty whether the
defendant had ―parked 16 feet from the outermost traffic lane, rather than six feet
or 26 feet; that parking for emergencies was permitted in the dirt area he chose;
that [plaintiff] likely left the highway because he fell asleep or because of some
unknown adverse health event, rather than from distraction or even intoxication.‖
(Cabral, supra, 51 Cal.4th at p. 774.) Each of these factual circumstances went to
elements other than duty, such as breach or proximate causation.
Here, because ―the general duty to take ordinary care in the conduct of
one‘s activities‖ applies to the use of asbestos on an owner‘s premises or in an
employer‘s manufacturing processes, ―the issue is also properly stated as whether
a categorical exception to that general rule should be made‖ exempting property
owners and employers from potential liability to individuals who were exposed to
asbestos by way of employees carrying it on their clothes or person. (Cabral,
supra, 51 Cal.4th at p. 774, citing § 1714, subd. (a).) In answering this question,
our task is not to decide whether Kesner or the Havers have proven that asbestos
from Abex or BNSF actually and foreseeably reached Johnny Kesner or Lynne
Haver, or whether Abex‘s or BNSF‘s asbestos contributed to the disease that
Johnny or Lynne suffered, or whether Abex or BNSF had adequate procedures in
place to prevent take-home exposure. Our task is to determine whether household
exposure is categorically unforeseeable and, if not, whether allowing the
possibility of liability would result in such significant social burdens that the law
should not recognize such claims. As noted, we will not ―carv[e] out an entire
category of cases from th[e] general duty rule‖ of section 1714, subdivision (a),
unless doing so ―is justified by clear considerations of policy.‖ (Cabral, at
p. 772.)
8
III.
The Rowland factors fall into two categories. Three factors —
foreseeability, certainty, and the connection between plaintiff and defendant —
address the foreseeability of the relevant injury, while the other four — moral
blame, preventing future harm, burden, and availability of insurance — take into
account public policy concerns that might support excluding certain kinds of
plaintiffs or injuries from relief. As explained below, we conclude that the
exposure of household members to take-home asbestos is generally foreseeable
and that BNSF and Abex have not shown that categorically barring take-home
claims is justified by clear considerations of policy. Accordingly, Abex and BNSF
owed plaintiffs a duty of ordinary care to prevent take-home exposure.
A.
The most important factor to consider in determining whether to create an
exception to the general duty to exercise ordinary care articulated by section 1714
is whether the injury in question was foreseeable. (Tarasoff v. Regents of Univ. of
California (1976) 17 Cal. 3d 425, 434 (Tarasoff).) With respect to this factor, we
conclude that it was foreseeable that people who work with or around asbestos
may carry asbestos fibers home with them and expose members of their
household. This factor weighs in favor of the existence of a duty.
―[A]s to foreseeability, . . . the court‘s task in determining duty ‗is not to
decide whether a particular plaintiff‘s injury was reasonably foreseeable in light
of a particular defendant‘s conduct, but rather to evaluate more generally whether
the category of negligent conduct at issue is sufficiently likely to result in the kind
of harm experienced that liability may appropriately be imposed . . . .‘ ‖ (Cabral,
supra, 51 Cal.4th at p. 772; accord, Parsons v. Crown Disposal Co. (1997) 15
Cal. 4th 456, 476 (Parsons); Jackson v. Ryder Truck Rental, Inc. (1993) 16
Cal. App. 4th 1830, 1839.) For purposes of duty analysis, ― ‗foreseeability is not to
9
be measured by what is more probable than not, but includes whatever is likely
enough in the setting of modern life that a reasonably thoughtful [person] would
take account of it in guiding practical conduct.‘. . . [I]t is settled that what is
required to be foreseeable is the general character of the event or harm — e.g.,
being struck by a car while standing in a phone booth — not its precise nature or
manner of occurrence.‖ (Bigbee v. Pac. Tel. & Tel. Co. (1983) 34 Cal. 3d 49, 57–
58 (Bigbee).)
A reasonably thoughtful person making industrial use of asbestos during
the time periods at issue in this case (i.e., the mid-1970s) would take into account
the possibility that asbestos fibers could become attached to an employee‘s
clothing or person, travel to that employee‘s home, and thereby reach other
persons who lived in the home. (See Olivo v. Owens-Illinois, Inc. (N.J. 2006) 895
A.2d 1143, 1149 (Olivo) [―It requires no leap of imagination to presume that . . .
[the worker‘s] spouse would be handling [the worker‘s] clothes in the normal and
expected process of laundering them so that the garments could be worn to work
again.‖].) It is a matter of common experience and knowledge that dust or other
substances may be carried from place to place on one‘s clothing or person, as
anyone who has cleaned an attic or spent time in a smoky room can attest.
Defendants would not need to know ―the precise . . . manner‖ that exposure
occurred (i.e., that Lynne laundered Mike‘s clothing or that George roughhoused
with his nephew Johnny) in order to recognize the general risk posed by workers
leaving an area with airborne dust-based toxins and then coming into contact with
members of their households. (Bigbee, supra, 34 Cal.3d at p. 58.)
Moreover, at the time George Kesner and Mike Haver worked for
defendants, broadly applicable regulations identified the potential health risks of
asbestos traveling outside a worksite. In June 1972, the federal Occupational
Safety and Health Administration (OSHA) published its first permanent
10
regulations for employers using asbestos. (OSHA, Standard for Exposure to
Asbestos Dust, 37 Fed. Reg. 11320 (June 7, 1972) (OSHA Standard), amending
29 C.F.R. § 1910 et seq.; for current regulation, see 29 CFR § 1910.0001 et seq.
(2016); see also Industrial Union Department, AFL-CIO v. Hodgson (D.C.Cir.
1974) 499 F.2d 467, 471–472 (Industrial Union).) In addition to setting a ceiling
for employee exposure to airborne asbestos, the OSHA Standard required
employers to take precautions for employees and others who may be exposed to
concentrations of airborne asbestos above that ceiling. (OSHA Standard, supra,
37 Fed. Reg. 11320, adding 29 C.F.R. former § 1910.93a.) Some precautions
contemplated asbestos traveling within a worksite. For example, the regulations
required employers to post signs in all areas of high airborne asbestos
concentrations ―at such a distance from such a location so that an employee may
read the signs and take necessary protective steps before entering the area marked
by the signs.‖ (Id., 37 Fed. Reg. 11321.) Others protected nonemployees from
asbestos traveling outside of a worksite on employees‘ clothing. Under the
regulations, employers were required to provide their asbestos-exposed employees
with special clothing and changing rooms. (Ibid.) Employers were required to
inform launderers of asbestos-exposed clothing of the asbestos contamination and
to transport asbestos-exposed clothing ―in sealed impermeable bags, or other
closed, impermeable containers‖ that were appropriately labeled as containing
asbestos. (Ibid.) Moreover, employers were required to provide ―two separate
lockers or containers for each employee, so separated or isolated as to prevent
contamination of the employee‘s street clothes from his work clothes.‖ (Ibid.)
Well before OSHA issued the 1972 standard, the federal government and
industrial hygienists recommended that employers take measures to prevent
employees who worked with toxins from contaminating their families by changing
and showering before leaving the workplace. In 1952, the United States
11
Department of Labor‘s standards for federal contractors provided that ―[w]orkers
who handle or are exposed to harmful materials in such a manner that contact of
work clothes with street clothes will communicate to the latter the harmful
substances . . . should be provided with facilities which will prevent this contact.‖
(U.S. Dept. of Labor, Safety and Health Standards For Contractors performing
Federal Supply Contracts under the Walsh-Healey Public Contracts Act (1952) pt.
III. B. 5 (d), 25.) The International Labour Office‘s Standard Code of Industrial
Hygiene (Geneva 1934) recommended washing accommodation and cloakrooms
for workers ―[i]n dusty trades.‖ (Id., art. 4, std. 40, at p. 15.) It was also known
that take-home exposure to asbestos could cause serious injury; as early as 1965,
scholarly journals documented fatal cases of mesothelioma where patients‘ only
exposure was through living with an asbestos worker. (See Newhouse &
Thompson, Mesothelioma of Pleura and Peritoneum Following Exposure to
Asbestos in the London Area (1965) vol. 22, No. 4 Brit. J. Indus. Med. 261, 264.)
Defendants argue that there was no scientific consensus regarding the risks
of take-home asbestos during the relevant time periods here. But defendants cite
no authority requiring a scientific consensus to establish foreseeability in the
context of duty analysis. (Cf. Tarasoff, supra, 17 Cal.3d at pp. 437–438 [rejecting
the argument that because the state of scientific evidence did not enable therapists
to accurately predict whether patients will act violently, therapists have no duty to
third parties for their patients‘ violent conduct, and instead holding that therapists
must ―exercise ‗that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of [that professional specialty] under similar
circumstances‘ ‖].) The OSHA Standard — informed by a four-day public
hearing ―at which various representatives and experts appeared on behalf of
interested parties,‖ and by recommendations from the National Institute for
Occupational Safety and Health and from an Advisory Committee on Asbestos
12
Standards composed of two employer and two labor representatives, plus a
representative of the public (Industrial Union, supra, 499 F.2d at p. 470; see id. at
p. 470, fn. 4) — observed that ―[n]o one has disputed that exposure to asbestos of
high enough intensity and long enough duration is causally related to asbestosis
and cancers. The dispute is as to the determination of a specific level below which
exposure is safe.‖ (OSHA Standard, supra, 37 Fed. Reg. 11318.) After
acknowledging conflicting evidence, the OSHA Standard said: ―In view of the
undisputed grave consequences from exposure to asbestos fibers, it is essential that
the exposure be regulated now, on the basis of the best evidence available now,
even though it may not be as good as scientifically desirable.‖ (Ibid.) The risks of
exposure that prompted OSHA to require precautions against take-home exposure
were sufficient to provide notice of the reasonable foreseeability of such harm.
Indeed, our research reveals no reported case in which an employer or industry
group challenged the 1972 OSHA Standard for lack of substantial evidence.
The second Rowland factor, the degree of certainty that the plaintiff
suffered injury, ―has been noted primarily, if not exclusively, when the only
claimed injury is an intangible harm such as emotional distress. ‖ (Bily, supra, 3
Cal.4th at p. 421.) Courts have occasionally included under this factor concerns
about the existence of a remedy. (See Cabral, supra, 51 Cal.4th at p. 781, fn. 9.)
Cecelia Kesner and the Havers allege that Johnny Kesner and Lynne Haver died as
a result of mesothelioma; their injuries are certain and compensable under the law.
The third Rowland factor, ― ‗the closeness of the connection between the
defendant‘s conduct and the injury suffered[,]‘ [citation] is strongly related to the
question of foreseeability itself.‖ (Cabral, supra, 51 Cal.4th at p. 779.) BNSF
argues that the connection between defendants‘ conduct and plaintiffs‘ illness is
―indirect and attenuated‖ because it ―relies on the intervening acts of a defendant‘s
13
employee to transmit the alleged asbestos risk to the plaintiff.‖ The ―closeness‖
factor, BNSF argues, ―weighs strongly against the imposition of a legal duty.‖
―It is well established . . . that one‘s general duty to exercise due care
includes the duty not to place another person in a situation in which the other
person is exposed to an unreasonable risk of harm through the reasonably
foreseeable conduct (including the reasonably foreseeable negligent conduct) of a
third person.‖ (Lugtu v. California Highway Patrol (2001) 26 Cal. 4th 703, 716.)
In determining whether one has a duty to prevent injury that is the result of third
party conduct, the touchstone of the analysis is the foreseeability of that
intervening conduct. (See Bigbee, supra, 34 Cal.3d at p. 58, quoting Rest.2d
Torts, § 449.) The relevant intervening conduct here — that workers returned
home at the end of the day and, without adequate precautions, would bring
asbestos dust home — is entirely foreseeable. An intervening third party‘s actions
that are ―themselves derivative of defendants‘ allegedly negligent conduct . . . do
not diminish the closeness of the connection between defendant‘s conduct and
plaintiff‘s injury for purposes of determining the existence of a duty of care.‖
(Beacon, supra, 59 Cal.4th at p. 583.) An employee‘s role as a vector in bringing
asbestos fibers into his or her home is derived from the employer‘s or property
owner‘s failure to control or limit exposure in the workplace.
In support of its claim that Lynne Haver‘s injury had only an attenuated
connection to defendants‘ use of asbestos, BNSF cites cases involving car
accidents in which the plaintiffs attempted to hold the defendants liable for
creating the situation in which they were hit by a third party driver. But each of
those cases turned on either the lack of foreseeability of the intervening negligent
conduct or the lack of relationship between the intervening conduct and the
defendant‘s negligence. (See Hoff v. Vacaville Unified School District (1998) 19
Cal. 4th 925, 936 [―school personnel who neither know nor reasonably should
14
know that a particular student has a tendency to drive recklessly owe no duty to
off-campus nonstudents‖]; Richards v. Stanley (1954) 43 Cal. 2d 60, 65 [where
―the defendant has no reason to believe that the third person is incompetent to
manage‖ property, the defendant has no duty to prevent negligent use of lent or
stolen property]; Bryant v. Glastetter (1995) 32 Cal. App. 4th 770, 782 [―there is no
logical cause and effect relationship between that negligence and the harm
suffered by decedent except for the fact that it placed decedent in a position to be
acted upon by the negligent third party‖].) Where there is a logical causal
connection between the defendant‘s negligent conduct and the intervening
negligence of a third party driver, making the intervening negligence foreseeable,
we have found both a duty and liability. (See Weirum v. RKO General, Inc.
(1975) 15 Cal. 3d 40 [affirming a wrongful death judgment against a radio
broadcaster where radio contest that awarded teen drivers for being the first to
reach a disc jockey driving around the area induced reckless driving that killed
decedent].)
In sum, BNSF‘s reliance on our cases involving third party drivers is
unavailing. The gravamen of plaintiffs‘ claims is that defendants failed to mitigate
known risks associated with the use of asbestos. Increased risk of mesothelioma is
a characteristic harm that makes the use of asbestos-containing materials
unreasonably dangerous in the absence of protective measures. An employee‘s
return home at the end of the workday is not an unusual occurrence, but rather a
baseline assumption that can be made about employees‘ behavior. The risk of
take-home exposure to asbestos ― ‗is likely enough in the setting of modern life
that a reasonably thoughtful [employer or property owner] would take account of
it in guiding practical conduct‘ ‖ in the workplace. (Bigbee, supra, 34 Cal.3d at
p. 57.) Moreover, the intervening conduct leading to this exposure is predictable
15
and derivative of the alleged misconduct, namely, failure to control the movement
of asbestos fibers. The foreseeability factors weigh in favor of finding a duty here.
B.
―[F]oreseeability alone is not sufficient to create an independent tort duty.
‗ ― . . . [The] existence [of a duty] depends upon the foreseeability of the risk and a
weighing of policy considerations for and against imposition of liability.‖ ‘ ‖
(Erlich v. Menezes (1999) 21 Cal. 4th 543, 552.) These policy considerations
include ― ‗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
liability for breach, and the availability, cost, and prevalence of insurance for the
risk involved‘ (Rowland, supra, 69 Cal.2d at p. 113).‖ (Cabral, supra, 51 Cal.4th
at p. 781.) ―A duty of care will not be held to exist even as to foreseeable injuries
. . . where the social utility of the activity concerned is so great, and avoidance of
the injuries so burdensome to society, as to outweigh the compensatory and cost-
internalization values of negligence liability. [Citations.]‖ (Merrill v. Navegar,
Inc. (2001) 26 Cal. 4th 465, 502.) We first address prevention of future harm,
moral blame, and availability of insurance, and then discuss the burden that a
finding of duty here would impose on both defendants.
―The overall policy of preventing future harm is ordinarily served, in tort
law, by imposing the costs of negligent conduct upon those responsible.‖ (Cabral,
supra, 51 Cal.4th at p. 781.) In general, internalizing the cost of injuries caused by
a particular behavior will induce changes in that behavior to make it safer. That
consideration may be ―outweighed, for a category of negligent conduct, by laws or
mores indicating approval of the conduct or by the undesirable consequences of
allowing potential liability.‖ (Id. at p. 782.)
16
Defendants contend that the future risk of the particular injury at issue —
mesothelioma resulting from exposure to airborne asbestos fibers — has largely
been eliminated through extensive regulation and reduced asbestos usage. In light
of state and federal regulations that currently mandate extensive precautions (see,
e.g., Lab. Code, §§ 9000–9052; 29 C.F.R. § 1910.1001 (2016) [federal regulations
setting forth detailed protective measures and limits for occupational exposure to
asbestos]; 40 C.F.R. § 763.165 (2015) [banning the import and manufacture of
certain asbestos-containing products]), imposing a duty to prevent secondary
exposure is unlikely to alter the behavior of current asbestos-using businesses.
Defendants thus argue there is little prospective benefit to finding a duty here.
But whether or how the imposition of liability would affect the conduct of
current asbestos users, our duty analysis looks to the time when the duty was
assertedly owed. Just as we look to the availability of scientific studies to assess
the foreseeability of injury due to take-home asbestos exposure at the time Lynne
and Johnny were exposed, the relevant question for this factor is whether imposing
tort liability in the 1970s would have prevented future harm from that point. The
numerous regulations cited by BNSF suggest that legislatures and agencies readily
adopted the premise that imposing liability would prevent future harm. And
BNSF points to no countervailing state policy promoting the use of asbestos to
outweigh our general presumption in favor of incentivizing reasonable
preventative measures. (See Cabral, supra, 51 Cal.4th at p. 782.) Rather, as the
regulations cited above make clear, there is a strong public policy limiting or
forbidding the use of asbestos.
As for moral blame, this factor can be difficult to assess in the absence of a
factual record. (See Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th
1066, 1078.) We have previously assigned moral blame, and we have relied in
part on that blame in finding a duty, in instances where the plaintiffs are
17
particularly powerless or unsophisticated compared to the defendants or where the
defendants exercised greater control over the risks at issue. (See Beacon, supra,
59 Cal.4th at p. 586 [―Because of defendants‘ unique and well-compensated role
in the Project as well as their awareness that future homeowners would rely on
their specialized expertise in designing safe and habitable homes, significant moral
blame attaches to defendants‘ conduct.‖]; Peterson v. San Francisco Community
College Dist. (1984) 36 Cal. 3d 799, 814 [failure to take intervening action to
improve safety of facilities ―if established, also indicate[s] that there is moral
blame attached to the defendants‘ failure to take steps to avert the foreseeable
harm‖].) Similar considerations apply here, as commercial users of asbestos
benefitted financially from their use of asbestos and had greater information and
control over the hazard than employees‘ households. Negligence in their use of
asbestos is morally blameworthy, and this factor weighs in favor of finding a duty.
As for the availability of insurance, Abex contends that insurance for
asbestos-related injuries is no longer widely available, as the insurance industry
has revised its standard commercial general liability policies to exclude asbestos.
But the relevant insurance policies are those that were available to defendants at
the time of exposure, even if the availability of such policies declined along with
the dramatic drop in the use of asbestos.
Among those defendants that had purchased suitable coverage, BNSF and
Abex contend, the scope of potential liability for take-home exposure would
exceed policy limits. We do not speculate on, and defendants do not offer, the
precise policy terms or estimates of the number of take-home claims to support
such an empirical conclusion. At the level of generality appropriate to duty
analysis, it is not obvious that secondary asbestos exposure poses greater
uncertainty in terms of potential claimants and total liability than, say, the
negligent release of chemicals into the air or negligent contamination of
18
groundwater. More to the point, BNSF argues that even if defendants could limit
the size of judgments against them by defeating plaintiffs‘ claims of causation or
injury, ―the burdens of participating in discovery and defending a case up to and
through a jury trial‖ would overwhelm insurers and defendants alike. Whatever
the ultimate liability of defendants for take-home asbestos exposure, their concern
is that the magnitude and uncertainty of potential liability make insuring against it
impossible.
At its core, this argument regarding the availability and cost of insurance
merges with the main policy consideration urged by Abex and BNSF: Allowing
tort liability for take-home asbestos exposure would dramatically increase the
volume of asbestos litigation, undermine its integrity, and create enormous costs
for the courts and community. The already ―elephantine mass of asbestos cases‖
would further expand. (Ortiz v. Fibreboard Corp. (1999) 527 U.S. 815, 821; see
Amchem Products, Inc. v. Windsor (1997) 521 U.S. 591, 598.) Bringing such
cases to trial would entail ―inherently tricky fact-finding,‖ Abex contends, against
a backdrop of fading memories, reorganized and successor corporations, lost
records, and evolving regulatory standards informing the particular duty in any
given case. Moreover, defendants argue, recognizing a duty would permit
sufferers of mesothelioma or asbestosis who may have also been exposed in their
own workplaces to sue their family members‘ employers as well as their own.
Such suits would target contributors to a plaintiff‘s total asbestos exposure on the
basis of relative solvency instead of relative fault, with joint and several liability
resulting in significant judgments against relatively small contributors.
In evaluating defendants‘ concerns, we begin by observing that the relevant
burden in the analysis of duty is not the cost to the defendants of compensating
individuals for past negligence. To the extent defendants argue that the costs of
paying compensation for injuries that a jury finds they have actually caused would
19
be so great that we should find no duty to prevent those injuries, the answer is that
shielding tortfeasors from the full magnitude of their liability for past wrongs is
not a proper consideration in determining the existence of a duty. Rather, our duty
analysis is forward-looking, and the most relevant burden is the cost to the
defendants of upholding, not violating, the duty of ordinary care. (See, e.g.,
Parsons, supra, 15 Cal.4th at p. 473 [assessing the behavior changes that
machinery operators and local landowners would have to make to prevent
spooking horses with loud noises as the relevant ―burden to the defendant and
consequences to the community‖ under Rowland]; Isaacs v. Huntington Memorial
Hospital (1985) 38 Cal. 3d 112, 131 [―The foreseeability of an assault was high in
comparison to the minimal burden on the hospital to take security measures
. . . .‖].) Neither the Court of Appeal in Haver nor defendants suggest that
preventing Lynne‘s or Johnny‘s exposure to asbestos was unreasonably expensive
to defendants or that the costs would have impeded defendants‘ ability to carry out
an activity with significant social utility. In general, preventing injuries to
workers‘ household members due to asbestos exposure does not impose a greater
burden than preventing exposure and injury to the workers themselves.
Defendants do not claim that precautions to prevent transmission via employees to
off-site individuals — such as changing rooms, showers, separate lockers, and on-
site laundry — would unreasonably interfere with business operations.
Defendants further argue that a finding of duty here will result in increased
insurance costs and tort damages, and ultimately impose a burden on consumers
and the community. But the tort system contemplates that the cost of an injury,
instead of amounting to a ―needless‖ and ―overwhelming misfortune to the person
injured,‖ will instead ―be insured by the [defendant] and distributed among the
public as a cost of doing business.‖ (Escola v. Coca Cola Bottling Co. (1944) 24
Cal. 2d 453, 462 (conc. opn. of Traynor, J.).) Such allocation of costs serves to
20
ensure that those ―best situated‖ to prevent such injuries are incentivized to do so.
(Ibid.; see generally Calabresi, The Cost of Accidents: A Legal and Economic
Analysis (1970).) Employers and premises owners are generally better positioned
than their employees or members of their employees‘ households to know of the
dangers of asbestos and its transmission pathways, and to take reasonable
precautions to avoid injuries that may result from on-site and take-home exposure.
BNSF observes that because the market for asbestos products has contracted
significantly in the decades between Johnny‘s and Lynne‘s exposure and the
current suits, the costs of these suits will be borne by entities other than the
companies that directly benefitted from the past use of asbestos. But this is a
concern that applies to all asbestos injuries. It does not provide a basis for
discriminating between those plaintiffs who experienced on-site exposure to
asbestos and those plaintiffs who experienced take-home exposures.
Defendants‘ most forceful contention is that a finding of duty in these cases
would open the door to an ―enormous pool of potential plaintiffs.‖ BNSF argues
there is no logical way of distinguishing between Lynne and anyone else who may
have been exposed to asbestos carried by their on-site employees. Once we accept
the principle of liability for asbestos exposure by means of employees carrying
fibers outside the workplace, they argue, we invite claims from anyone who may
have had contact with an asbestos worker, including ―innumerable relatives,
friends, acquaintances, [and] service providers,‖ as well as ―babysitters, neighbors,
. . . carpool partners, fellow commuters on public transportation, and laundry
workers.‖ According to defendants, such an unlimited duty imposes great costs
and uncertainty, and invites voluminous and frequently meritless claims that will
overwhelm the courts.
21
Like the Court of Appeal in Haver, defendants rely on Campbell, supra,
206 Cal. App. 4th 15, to argue that the uncertainty and size of potential liability for
defendants weighed against a finding of duty. Campbell, in turn, relied on Oddone
v. Superior Court (2009) 179 Cal. App. 4th 813. In Oddone, the plaintiff alleged
that her husband‘s employer negligently exposed him to toxic chemicals, which
the husband then brought home to the plaintiff, injuring her. (Id. at p. 816.)
Oddone said: ―The gist of the matter is that imposing a duty toward nonemployee
persons saddles the defendant employer with a burden of uncertain but potentially
very large scope. One of the consequences to the community of such an extension
is the cost of insuring against liability of unknown but potentially massive
dimension. Ultimately, such costs are borne by the consumer. In short, the burden
on the defendant is substantial and the costs to the community may be
considerable.‖ (Id. at p. 822; accord, Campbell, at p. 33.)
Defendants are correct that a finding of ― ‗ ―[n]o duty‖ ‘ ‖ is in effect ― ‗a
global determination that, for some overriding policy reason, courts should not
entertain causes of action for cases that fall into certain categories,‘ ‖ even if some
defendants in such cases did actually cause the harm of which the plaintiffs
complained. (Castaneda v. Olsher (2007) 41 Cal. 4th 1205, 1228 (conc. opn. of
Kennard, J.), quoting Sugarman, Assumption of Risk (1997) 31 Valparaiso U.
L.Rev. 833, 843.) ― ‗[N]ot every loss can be made compensable in money
damages, and legal causation must terminate somewhere.‖ (Borer v. American
Airlines, Inc. (1977) 19 Cal. 3d 441, 446.) Even if recognizing a duty would
enable some plaintiffs to obtain legitimate compensation for their injuries, the
argument goes, this interest is outweighed by the costs — to the defendants, the
judicial system, and society as a whole — of unremitting litigation by other
plaintiffs whose claims are tenuous at best.
22
But recognizing a duty with respect to one set of potential plaintiffs does
not imply that any plaintiff may make a similar claim. ―If the actor‘s conduct
creates such a recognizable risk of harm only to a particular class of persons, the
fact that it in fact causes harm to a person of a different class, to whom the actor
could not reasonably have anticipated injury, does not make the actor liable to the
persons so injured.‖ (Rest.2d Torts § 281, com. (c), p. 5.) Although defendants
raise legitimate concerns regarding the unmanageability of claims premised upon
incidental exposure, as in a restaurant or city bus, these concerns do not clearly
justify a categorical rule against liability for foreseeable take-home exposure.
(Cabral, supra, 51 Cal.4th at p. 772.) Instead, the concerns point to the need for a
limitation on the scope of the duty here.
We hold that an employer‘s or property owner‘s duty to prevent take-home
exposure extends only to members of a worker‘s household, i.e., persons who live
with the worker and are thus foreseeably in close and sustained contact with the
worker over a significant period of time. To be sure, there are other persons who
may have reason to believe they were exposed to significant quantities of asbestos
by repeatedly spending time in an enclosed space with an asbestos worker — for
example, a regular carpool companion. But any duty rule will necessarily exclude
some individuals who, as a causal matter, were harmed by the conduct of potential
defendants. By drawing the line at members of a household, we limit potential
plaintiffs to an identifiable category of persons who, as a class, are most likely to
have suffered a legitimate, compensable harm.
This limitation comports with our duty analysis under Rowland. Our
finding of foreseeability turned on the fact that a worker can be expected to return
home each work day and to have close contact with household members on a
regular basis over many years. Persons whose contact with the worker is more
incidental, sporadic, or transitory do not, as a class, share the same characteristics
23
as household members and are therefore not within the scope of the duty we
identify here. This rule strikes a workable balance between ensuring that
reasonably foreseeable injuries are compensated and protecting courts and
defendants from the costs associated with litigation of disproportionately meritless
claims.
Abex contends that if we find a duty to prevent take-home exposure, the
duty should be limited to immediate family members. But extending the duty to
household members, not just immediate family members, more closely tracks the
rationale for the existence of the duty. ―Being a household member refers not only
to the relationships among members of a family, but also to the bonds which may
be found among unrelated persons adopting nontraditional and quasi-familial
living arrangements.‖ (People v. Jeffers (1987) 43 Cal. 3d 984, 992.) As used in
other legal contexts, the term ―household‖ refers to persons who share ― ‗physical
presence under a common roof‘ ‖ (People v. Wutzke (2002) 28 Cal. 4th 923, 939)
or relationships aimed at common subsistence (Safeco Ins. Co. of America v.
Parks (2004) 122 Cal. App. 4th 779, 792). The cause of asbestos-related diseases is
the inhalation of asbestos fibers; the general foreseeability of harm turns on the
regularity and intimacy of physical proximity, not the legal or biological
relationship, between the asbestos worker and a potential plaintiff.
As an instructive point of contrast, we have limited the scope of a duty to
immediate family members where the alleged injury is negligent infliction of
emotional distress (Thing v. La Chusa (1989) 48 Cal. 3d 644; Christensen v.
Superior Court (1991) 54 Cal. 3d 868) or loss of consortium (Elden v. Sheldon
(1988) 46 Cal. 3d 267; Borer v. American Airlines, Inc., supra, 19 Cal. 3d 441;
Baxter v. Superior Court (1977) 19 Cal. 3d 461). In each of these cases, the
emotional injury grew out of the loss of a relationship to a third party or the
vicarious suffering of the plaintiff with respect to that third party. Here, the
24
significance of a plaintiff‘s relationship to a third party (an asbestos worker) lies in
the degree of exposure the plaintiff had to asbestos dust as a result of his or her
physical contact and cohabitation with the third party in an enclosed space. Such
contact and cohabitation within a household does not depend on a legal or
biological relationship between the plaintiff and the worker.
C.
In sum, proper application of the Rowland factors supports the conclusion
that defendants had a duty of ordinary care to prevent take-home asbestos
exposure. Such exposure and its resulting harms to human health were reasonably
foreseeable to large-scale users of asbestos by the 1970s, and the OSHA Standard
affirmed the commonsense reality that asbestos fibers could be carried on the
person or clothing of employees to their homes and could be inhaled there by
household members. Businesses making use of asbestos were well positioned,
relative to their workers, to undertake preventive measures, and Abex and BNSF
cite no evidence to suggest such measures would have been unreasonably costly.
Although the lawful use of asbestos is not inherently reprehensible, no state policy
promotes or specially protects it. We are mindful that recognizing a duty to all
persons who experienced secondary exposure could invite a mass of litigation that
imposes uncertain and potentially massive and uninsurable burdens on defendants,
the courts, and society. But this concern does not clearly justify a categorical
exemption from liability for take-home exposure. ―The law is not indifferent to
considerations of degree‖ (A.L.A. Schechter Poultry Corp. v. U.S. (1935) 295 U.S.
495, 554 (conc. opn. of Cardozo, J.)), and the foreseeability of take-home
exposure and associated risk of injury are at their maximum when it comes to
members of an employee‘s household. Accordingly, we hold that defendants
owed the members of their employees‘ households a duty of ordinary care to
prevent take-home exposure and that this duty extends no further. We disapprove
25
Campbell v. Ford Motor Co., supra, 206 Cal. App. 4th 15, and Oddone v. Superior
Court, supra, 179 Cal. App. 4th 813, to the extent they are inconsistent with this
opinion.
Defendants analogize the present cases to Bily, supra, 3 Cal. 4th 370, but the
comparison actually reinforces why relevant policy considerations weigh in favor
of a duty here. The court in Bily was concerned that ―[a]n award of damages for
pure economic loss suffered by third parties raises the spectre of vast numbers of
suits and limitless financial exposure‖ for auditors, a concern similar to those
raised by defendants here. (Id. at p. 400.) We held that accountants do not have a
duty to prevent investors‘ losses as a result of negligent auditing because (1) ―the
complexity of the professional opinions rendered in audit reports, and the difficult
and potentially tenuous causal relationships between audit reports and economic
losses from investment and credit decisions‖ make it challenging to determine the
causal relationship between auditor mistakes and investor losses; (2) ―the
generally more sophisticated class of plaintiffs‖ makes contract rather than tort
law an effective means of allocating risk; and (3) the added risk of secondary
liability is unlikely to alter accountants‘ behavior because they already have a
significant business interest in accuracy. (Id. at p. 398.)
None of these countervailing considerations applies to take-home asbestos
exposure: (1) Unlike the causal relationship between auditor mistakes and
investor losses, the causal relationship between preventable asbestos exposure of
sufficient intensity and duration and the type of injuries plaintiffs allege here is
clear and scientifically well established, and was so at the time of Lynne‘s and
Johnny‘s alleged exposure. (See OSHA Standard, supra, 37 Fed. Reg. 11318
[―No one has disputed that exposure to asbestos of high enough intensity and long
enough duration is causally related to asbestosis and cancers.‖].) (2) Plaintiffs
such as Lynne and Johnny are not sophisticated with respect to the dangers of
26
asbestos, much less able to contract with the relevant employers or premises
owners regarding safety procedures. (3) Nor do asbestos-using companies have a
business interest, apart from potential liability, in taking precautions to prevent
take-home exposure. Moreover, we have limited the duty to prevent take-home
asbestos exposure to a discrete category, namely, members of a worker‘s
household. This limitation means that not all persons who foreseeably
experienced secondary exposure may sue for damages; as a result, defendants are
unlikely to ―face[] potential liability far out of proportion to [their] fault.‖ (Bily,
supra, 3 Cal.4th at p. 398.)
Finally, Abex argues that even if we find it had a duty to prevent take-home
asbestos exposure, we must find as a matter of law that Kesner cannot meet the
burden of demonstrating proximate causation. Whatever merit this argument may
have, we do not address it here. The only issue on which we granted review was
whether a duty exists to prevent take-home exposure. We have no occasion to
address other arguments defendants might make to defeat liability. It must be
remembered that a finding of duty is not a finding of liability. To obtain a
judgment, a plaintiff must prove that the defendant breached its duty of ordinary
care and that the breach proximately caused the plaintiff‘s injury, and the
defendant may assert defenses and submit contrary evidence on each of these
elements. Here, Abex may argue that in light of other sources of asbestos to
which Johnny may have been exposed, one cannot say with sufficient certainty
that fibers carried home by his uncle were a ―substantial factor‖ (Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 968) in bringing about Johnny‘s
mesothelioma. BNSF similarly argues (with respect to the ―closeness of
connection‖ between its conduct and Lynne‘s injuries) that the Havers‘ own
complaint, by alleging that Mike was exposed to asbestos in a variety of other
contexts, casts doubt on the causal relationship between BNSF‘s use of asbestos
27
and Lynne‘s mesothelioma. The possibility of other sources of exposure is a fact-
specific inquiry; it does not bear on the question of duty, which must be addressed
at a higher level of generality. (Cabral, supra, 51 Cal.4th at p. 772.)
IV.
The Havers and Kesner allege different primary theories of liability:
premises liability (the Havers) and negligence (Kesner). BNSF argues that even if
employers have a duty to prevent employees from exposing members of their
household to asbestos by carrying fibers home on their clothing, property owners
do not have a similar obligation with respect to workers on their premises.
According to BNSF, to hold that property owners owe a duty of ordinary care to
persons who have never set foot on the premises ―would take the ‗premises‘ out of
premises liability and unsettle the tort law that applies to all property owners in
this state.‖ We disagree.
The elements of a negligence claim and a premises liability claim are the
same: a legal duty of care, breach of that duty, and proximate cause resulting in
injury. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998; see Ladd v.
County of San Mateo (1996) 12 Cal. 4th 913, 917 [negligence cause of action];
Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205 [cause of action for premises
liability].) Premises liability ― ‗is grounded in the possession of the premises and
the attendant right to control and manage the premises‘ ‖; accordingly, ― ‗mere
possession with its attendant right to control conditions on the premises is a
sufficient basis for the imposition of an affirmative duty to act.‘ ‖ (Preston v.
Goldman (1986) 42 Cal. 3d 108, 118, italics omitted, quoting Sprecher v. Adamson
Companies (1981) 30 Cal. 3d 358, 368, 370.) But the duty arising from possession
and control of property is adherence to the same standard of care that applies in
negligence cases. (Rowland, supra, 69 Cal.2d at p. 119 [―The proper test to be
applied to the liability of the possessor of land . . . is whether in the management
28
of his property he has acted as a reasonable man in view of the probability of
injury to others . . . .‖]; accord, Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 1156.) In
determining whether a premises owner owes a duty to persons on its property, we
apply the Rowland factors. (See, e.g., Thai v. Stang (1989) 214 Cal. App. 3d 1264,
1271 [Rowland analysis applies to premises liability cases].) Indeed, Rowland
itself involved premises liability. (Rowland, at p. 110.)
We have never held that the physical or spatial boundaries of a property
define the scope of a landowner‘s liability. The Courts of Appeal have repeatedly
concluded that ― ‗[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.‘ ‖ (Garcia v. Paramount Citrus Association (2008) 164 Cal. App. 4th
1448, 1453; see Barnes v. Black (1999) 71 Cal. App. 4th 1473, 1478 (Barnes);
McDaniel v. Sunset Manor Co. (1990) 220 Cal. App. 3d 1, 7–8 (McDaniel).)
―Rather, 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 off-site.‖ (Barnes,
supra, 71 Cal.App.4th at p. 1478; see Davert v. Larson (1985) 163 Cal. App. 3d
407, 410 [―A landowner or possessor owes a duty of care to persons who come on
his property as well as to persons off the property for injuries due to the
landowner‘s lack of due care in the management of his property.‖].)
BNSF argues that those cases are distinguishable on the ground that the
relevant off-site injuries were due in part to the plaintiff‘s proximity to the
defendant‘s property, a fact that implicitly establishes a self-limiting principle for
finding such liability. Noting that Garcia, Barnes, and McDaniel addressed
liability for accidents occurring adjacent to the defendant‘s property, BNSF says
this court has ―never expanded premises liability to permit lawsuits by plaintiffs
29
whose only connection to the property at issue is an encounter with someone who
visited the site.‖
Although this last statement is superficially correct, it misconstrues the
Havers‘ theory of negligence. It is not Lynne‘s contact with Mike that allegedly
caused her mesothelioma, but rather Lynne‘s contact with asbestos fibers that
BNSF used on its property. Mike and his clothing acted as a vector to carry the
fibers into Mike and Lynne‘s home, where she was exposed. The Havers‘ claim
of negligence focuses on an allegedly hazardous condition created and maintained
on BNSF‘s property and BNSF‘s alleged failure to contain that hazard as a
reasonable property owner would have done in the mid-1970s. This claim is
readily attributable ―to [a] specific condition, natural or artificial,‖ on BNSF‘s
property. (A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal. App. 3d 657,
663.)
Indeed, liability for harm caused by substances that escape an owner‘s
property is well established in California law. ―The Rowland factors determine
the scope of a duty of care whether the risk of harm is situated on site or off site.‖
(Barnes, supra, 71 Cal.App.4th at p. 1479, quoting McDaniel, supra, 220
Cal.App.3d at pp. 7–8.) We have found that landowners have a duty to prevent
hazardous natural conditions arising on their property from escaping and causing
injury to adjacent property. (See Sprecher v. Adamson Companies (1981) 30
Cal. 3d 358 [applying Rowland factors to find that an uphill landowner had a duty
to correct or control a landslide condition on their land that eventually pushed a
downhill landowner‘s home into a third house, resulting in damages].) A similar
rule applies to escaping animals. (See Davert, supra, 163 Cal. App. 3d 407 [finding
landowner had a duty to prevent injuries due to a horse‘s escape from the property
and subsequent collision with an automobile]; Curtis v. State of California ex rel.
Dept. of Transportation (1982) 128 Cal. App. 3d 668 [upholding verdict finding the
30
state negligent in constructing defective fences that permitted a cow to escape and
create a dangerous condition by entering a public highway].) And the Courts of
Appeal ―have consistently held private persons liable for negligently setting fires
and for negligently allowing fires to escape to others‘ properties.‖ (Anderson v.
United States (9th Cir. 1995) 55 F.3d 1379, 1381, citing People v. Southern
Pacific Co. (1983) 139 Cal. App. 3d 627, 633–634, and Gould v. Madonna (1970) 5
Cal. App. 3d 404, 406.)
The cases above do not suggest that the duties of employers and the duties
of premises owners are necessarily coextensive. The law of premises liability
includes a number of affirmative defenses and exceptions flowing from the
general principle that ― ‗[t]he duties owed in connection with the condition of land
are not invariably placed on the person [holding title] but, rather, are owed by the
person in possession of the land [citations] because [of the possessor‘s]
supervisory control over the activities conducted upon, and the condition of, the
land.‘ ‖ (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1161.) For example, a
landowner ―who hired an independent contractor generally [is] not liable to third
parties for injuries caused by the contractor‘s negligence in performing the work.‖
(Privette v. Superior Court (1993) 5 Cal. 4th 689, 693; cf. Van Fossen v.
MidAmerican Energy Co. (Iowa 2009) 777 N.W.2d 689, 698.) At the same time,
the rule is subject to exceptions: ―[T]he hirer as landowner may be independently
liable to the contractor‘s employee, even if it does not retain control over the work,
if (1) it knows or reasonably should know of a concealed, preexisting hazardous
condition on its premises; (2) the contractor does not know and could not
reasonably ascertain the condition; and (3) the landowner fails to warn the
contractor.‖ (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 675.)
31
We express no view on whether BNSF can assert one or more of these fact-
specific defenses or whether the exceptions under the Privette doctrine, which
applies to a contractor‘s employees, also apply to injuries to those employees‘
family members. No such defense has been alleged. The facts as pleaded, which
we must accept as true at this stage (see Schifando v. City of Los Angeles (2003)
31 Cal. 4th 1074, 1081), are that BNSF‘s predecessor was not a passive consumer
of asbestos but instead had ― ‗supervisory control‘ ‖ (Alcaraz v. Vece, supra, 14
Cal.4th at p. 1158) over the sources of asbestos to which Lynne was exposed.
Mike, who carried the asbestos home, was an employee of that predecessor.
Under these circumstances, in which BNSF‘s predecessors are alleged to have
engaged in active supervisory control and management of asbestos sources, the
Havers‘ premises liability claim is subject to the same requirements and same duty
analysis that apply to a claim of general negligence.
V.
Looking beyond California law, Abex and BNSF urge us to follow what
Abex characterizes as ―a growing majority of courts‖ that have rejected a duty of
ordinary care to prevent take-home exposure to asbestos. This argument rests on a
mischaracterization of out-of-state precedent. The only courts that have squarely
addressed cases of take-home exposure factually comparable to the cases before
us, and that have applied general tort law principles commensurate with our own,
have reached the same conclusion we do here. All of the cases cited by defendants
as failing to find a duty are readily distinguishable.
First, a number of the cases defendants cite address facts different from
those presented here. In Martin v. Cincinnati Gas & Elec. Co. (6th Cir. 2009) 561
F.3d 439, the Sixth Circuit found ―no evidence that either defendant had actual
knowledge of the danger of bystander exposure‖ during a period of alleged
exposure spanning the years 1951 through 1963. (Id. at pp. 444–445.) But the
32
exposure at issue here occurred in the 1970s, after OSHA had promulgated a
standard to address the acknowledged danger of take-home exposure. (OSHA
Standard, supra, 37 Fed. Reg. 11320.) Decisions of the Illinois Supreme Court
and Texas Courts of Appeal are similarly distinguishable. (See Simpkins v. CSX
Transportation, Inc. (Ill. 2012) 965 N.E.2d 1092 [remanding to allow plaintiffs
leave to amend the complaint to state enough well-pleaded facts to establish
foreseeability]; Alcoa, Inc. v. Behringer (Tex.App. 2007) 235 S.W.3d 456, 462
[plaintiff failed to show that ―the danger of non-occupational exposure to asbestos
dust on workers‘ clothes was . . . known [or] reasonably foreseeable to Alcoa in
the 1950s‖ and thus Alcoa did not owe a duty to a plaintiff alleging take-home
exposure ―under the facts of this case‖]; but cf. Dube v. Pittsburgh Corning (1st
Cir. 1989) 870 F.2d 790, 793 [the Navy was ―charged with knowledge of the risk
[of asbestos] to domestic bystanders as of October 1964‖ and was negligent in its
failure to ―consider[] whether those risks justified a warning‖], abrogated on other
grounds by Shansky v. U.S. (1st Cir. 1999) 164 F.3d 688.)
Second, defendants cite a number of product liability suits. The Maryland
high court determined that a products manufacturer could not foresee and had no
means of preventing take-home exposure as the result of use of its asbestos-
containing product in 1969. (See Georgia Pacific, LLC v. Farrar (Md. 2013) 69
A.3d 1028, 1039.) But that same court, on the same day, upheld a judgment
awarding damages on a product liability and take-home exposure claim and noted
that, although the defendants had not challenged the foreseeability of the alleged
injury and therefore the court did not address that issue, the fact that exposure
―extended well beyond 1972‖ might alter the foreseeability determination. (Dixon
v. Ford Motor Co. (Md. 2013) 70 A.3d 328, 330, fn. 1.) More to the point, take-
home asbestos cases against employers or premises owners allege that the
defendants had direct knowledge as to how fibers were being released and
33
circulated within their facilities and failed to prevent those employees from
leaving workplaces owned or controlled by the defendants with asbestos on their
clothing or persons. Product liability defendants, by contrast, have no control over
the movement of asbestos fibers once the products containing those fibers are sold.
Because the Rowland analyses for these two theories of liability differ
significantly, product liability cases are inapposite.
Third, defendants cite cases where the court, in concluding that the
defendants did not have a duty to prevent take-home exposure, asserted as a
foundational principle of tort liability that a plaintiff and a defendant must have a
prior relationship for a duty to exist from the latter to the former. This category
includes the New York high court‘s opinion in Matter of New York City Asbestos
Litigation (N.Y. 2005) 840 N.E.2d 115, 119. An Illinois appellate court has
similarly predicated its finding of no duty on the absence of a relationship between
plaintiff and defendant. (Nelson v. Aurora Equipment Co. (Ill.App.Ct. 2009) 909
N.E.2d 931, 934.) Other courts have downplayed the significance of
foreseeability while embracing a preexisting relationship between plaintiff and
defendant as a prerequisite to the establishment of a duty. (See Gillen v. Boeing
Co. (E.D. Pa. 2014) 40 F. Supp. 3d 534, 538–540 [applying Pennsylvania tort law
where foreseeability ― ‗is not necessarily a dominant factor‘ ‖ and where the fact
that parties were ― ‗legal strangers‘ ‖ is a significant consideration to hold that
plaintiff‘s husband‘s employer had no duty to protect plaintiff from asbestos]; In
re Certified Question from Fourteenth District Court of Appeals of Texas (Mich.
2007) 740 N.W.2d 206, 211 [― ‗Duty . . . ―concerns the problem of the relation
between individuals which imposes upon one a legal obligation for the benefit of
the other,‖ ‘ ‖]; id. at p. 212 [―Although foreseeability is a factor to be considered,
‗[all] other considerations may be, and usually are, more important.‘ ‖].)
34
In California, both legislative policy (section 1714) and this court‘s long-
standing precedent have treated foreseeability as the predominant factor in duty
analysis. Although we have held that the existence of a relationship between the
plaintiff and defendant is one basis for finding liability premised on the conduct of
a third party (see Davidson v. City of Westminster (1982) 32 Cal. 3d 197, 203–205;
Tarasoff, supra, 17 Cal.3d at pp. 435–436), we have never held that such a
relationship is a prerequisite to finding that a defendant had a duty to prevent
injuries due to its own conduct or possessory control. Indeed, the irrelevance of
the relationship between the plaintiff and the defendant is the central holding of
Rowland: We squarely rejected the notion that duty analysis should turn on
whether the person injured on the owner‘s or occupier‘s premises was a trespasser,
licensee, or invitee. (Rowland, supra, 69 Cal.2d at pp. 116–119.) Although ―in
general‖ there may be a correlation between the factors relevant to duty analysis
and the plaintiff‘s relationship to a property owner, ―there are many cases in which
no such relationship may exist‖ yet proper analysis of the Rowland factors would
support the existence of a duty. (Id. at pp. 117–118.) The New York, Illinois,
Pennsylvania, and Michigan authorities are therefore inapplicable to our present
analysis, as each begins from a principle of tort law this court has long rejected.
Finally, defendants cite two decisions rejecting take-home asbestos claims
by the Delaware Supreme Court. In both cases, the court relied heavily on a
distinction between misfeasance and nonfeasance to conclude that an employer‘s
failure to prevent take-home exposure is nonfeasance and thus, in the absence of a
―legally significant relationship‖ between the plaintiff and their spouse‘s
employer, no legal duty existed. (Riedel v. ICI Americas Inc. (Del. 2009) 968
A.2d 17, 25–27; see Price v. E.I. DuPont de Nemours & Co. (Del. 2011) 26 A.3d
162, 170 [applying same reasoning to a ―failure to warn‖ claim].) The Delaware
Supreme Court ―decline[d] to adopt . . . the principle that absent a countervailing
35
principle or policy‖ all actors have a ―duty to exercise reasonable care when the
actor‘s conduct creates a risk of physical harm,‖ as stated by section 7 of the
Restatement (Third) of Torts, Physical and Emotional Harm. (Riedel, supra, 968
A.2d at pp. 20–21.) But we have endorsed precisely this principle — and section
7 of the Restatement Third of Torts — as an articulation of California law.
(Cabral, supra, 51 Cal.4th at p. 771 fn. 2). Thus, the Delaware Supreme Court‘s
approach is not informative here because it begins from a plainly different general
principle of tort liability.
Against this body of distinguishable precedent stand decisions from two
state high courts and one intermediate appellate court that begin with the premise
that foreseeability of injury is a significant factor in duty analysis, find that take-
home exposure is reasonably foreseeable to employers using asbestos-containing
materials, weigh this foreseeability against public policy considerations, and
conclude that possessors or employers owe members of a worker‘s household a
duty to prevent take-home exposure. (See Satterfield v. Breeding Insulation Co.
(Tenn. 2008) 266 S.W.3d 347 (Satterfield); Olivo, supra, 895 A.2d at pp. 1148–
1149 [weighing ―foreseeability of the risk of harm to that individual or identifiable
class of individuals‖ and considerations of fairness, and concluding that ―to the
extent [defendant] owed a duty to workers on its premises for the foreseeable risk
of exposure to friable asbestos and asbestos dust, similarly, [defendant] owed a
duty to spouses handling the workers‘ unprotected work clothing‖]; Chaisson v.
Avondale Industries, Inc. (La.Ct.App. 2006) 947 So. 2d 171, 182, 184 [following
Olivo on the ground that Louisiana jurisprudence ―relie[s] more heavily upon
foreseeability,‖ and finding public policy weighs in favor of finding a ―duty of a
company with knowledge of the presence of asbestos and OSHA‘s 1972 standards
. . . to guard against [plaintiff‘s] household exposure to asbestos from laundering
her husband‘s work clothes‖]; Zimko v. American Cyanamid (La.Ct.App. 2005)
36
905 So. 2d 465, 483 [finding a ―duty to act reasonably in view of the foreseeable
risks of danger to household members of its employees resulting from exposure to
asbestos fibers carried home on its employee‘s clothing, person, or personal
effects‖ because inference of this danger was not particularly difficult and was
―definable as including the employee‘s household members‖].)
The reasoning of the Tennessee Supreme Court in Satterfield is particularly
instructive. There the plaintiff had ―filed a negligence action against her father‘s
employer, alleging that the employer had negligently permitted her father to wear
his asbestos-contaminated work clothes home from work.‖ (Satterfield, supra,
266 S.W.3d at p. 351.) After finding that the ―paramount‖ factor, foreseeability,
weighed in favor of finding a duty (id. at p. 366), the court addressed objections by
the defendant similar to those raised by Abex and BNSF, i.e., that manufacturers
―could face bankruptcy‖ (id. at p. 369), thereby costing jobs, and that finding a
duty would invite claims by other plaintiffs against all premise owners (id. at
pp. 370–371). The court reasoned that failing to assign liability to manufacturers
will not eliminate the burden these injuries have caused, but merely leave them on
the shoulders of the injured persons and fellow purchasers of health insurance, and
―no particular public policy reason[s]‖ favor allocating costs in this way. (Id. at
p. 371.) The court concluded that an ―employer owed a duty to those who
regularly and for extended periods of time came into close contact with the
asbestos-contaminated work clothes of its employees to prevent them from being
exposed to a foreseeable and unreasonable risk of harm.‖ (Id. at p. 352.) The
court went on to emphasize that a verdict against a premises owner will always
require proof that an injury due to take-home exposure was ―reasonably
foreseeable‖ in the particular circumstances of the case, a determination that
depends on fact-specific questions of asbestos quantity and the particularized
knowledge and sophistication of an individual defendant. (Id. at p. 371.)
37
In sum, the holding in this case is consistent with the conclusions of courts
that have adopted a general principle of tort liability analogous to section 1714 or
that allow recovery, as we did in Rowland, for foreseeable categories of injury
regardless of the relationship of the parties. Other courts and scholars, surveying
precedent on the issue of take-home exposure, have reached the same conclusion:
The different outcomes among state courts reflect underlying differences in the
duty doctrine in the respective states, not a split between a majority and a minority
position on the ultimate policy issues. (See Satterfield, supra, 266 S.W.3d at
p. 373; Levine, Clearing the Air: Ordinary Negligence in Take-Home Asbestos
Exposure Litigation (2011) 86 Wash. L.Rev. 359, 360.) By holding that section
1714 and Rowland analysis establish a duty to prevent take-home exposure that
extends to members of a worker‘s household, we stand in harmony with other
courts that have applied similar law to similar facts.
38
CONCLUSION
For the reasons above, we reverse the judgment of the Court of Appeal in
Haver and remand for further proceedings not inconsistent with this opinion. We
vacate the judgment of the Court of Appeal in Kesner and remand for further
proceedings not inconsistent with this opinion, including, if appropriate, a remand
to the trial court for the parties to submit additional evidence on whether Johnny
Kesner was a member of George Kesner‘s household for purposes of the duty we
recognize here.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
39
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Kesner v. Superior Court and Haver v. BNSF Railway Company
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 226 Cal. App. 4th 251 and 226 Cal. App. 4th 1104
Rehearing Granted
__________________________________________________________________________________
Opinion No. S219534 and S299919
Date Filed: December 1, 2016
__________________________________________________________________________________
Court: Superior
County: Alameda and Los Angeles
Judge: John M. True and Richard E. Rico
__________________________________________________________________________________
Counsel:
Weitz & Luxenberg, Benno Ashrafi, Cindy Saxey, Josiah W. Parker; Kazan, McClain, Satterley &
Greenwood and Ted W. Pelletier for Petitioner and for Plaintiff and Appellant Cecelia Kesner.
Brayton Purcell, Alan R. Brayton, Gilbert L. Purcell and Gary L. Brayton as Amici Curiae on behalf of
Petitioner and Plaintiff and Appellant Cecelia Kesner.
The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on
behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner.
Walters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants Joshua Haver, et
al.
The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiffs and Appellants Joshua Haver, et al.
No appearance for Respondent Superior Court.
Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Curt Cutting; Brydon Hugo & Parker, Hugo Parker,
Edward R. Hugo, James C. Parker and Jeffrey Kaufman for Real Party in Interest and for Defendant and
Respondent Pneumo Abex, LLC.
McKenna Long & Aldridge, Lisa L. Oberg; McDermott Will & Emery and Colleen E. Baime for
CertainTeed Corporation and Honeywell International Inc., as Amici Curiae on behalf of Real
Party in Interest and Defendant and Respondent Pneumo Abex, LLC.
Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel
and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Real Party in Interest and
Defendant and Respondent Pneumo Abex, LLC.
Page 2 – S219534 & S219919 counsel continued
Counsel:
Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Real
Party in Interest and Defendant and Respondent Pneumo Abex, LLC.
Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Real Party in Interest and
Defendant and Respondent Pneumo Abex, LLC.
Armstrong & Associates and William H. Armstrong for Resolute Management as Amicus Curiae on behalf
of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.
Schiff Hardin and Eliot S. Jubelirer for Owens-Illinois, Inc., as Amicus Curiae on behalf of Real Party in
Interest and Defendant and Respondent Pneumo Abex, LLC.
Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Coalition for Litigation Justice, Inc.,
Chamber of Commerce of the United States of America, National Association of Manufacturers, American
Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party
in Interest and Defendant and Respondent Pneumo Abex, LLC.
Gordon & Rees and Don Willenburg for Association of Defense Counsel of Northern California and
Nevada as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex,
LLC.
Horvitz & Levy, Curt Cutting and Steven Fleischman for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo
Abex, LLC.
Sims Law Firm, Selim Mounedji; Gibson, Dunn & Crutcher, Veronica Lewis, Theodore J. Boutrous Jr.,
Joshua S. Lipshutz and Alexander M. Fenner for Defendant and Respondent BNSF Railway Company.
Fred J. Hiestand; Erika C. Frank and Heather L. Wallace for The California Chamber of Commerce and
The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent BNSF
Railway Company.
Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Litigation Justice, Inc., Chamber of
Commerce of the United States of America, National Association of Manufacturers, American Tort Reform
Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Defendant and
Respondent BNSF Railway Company.
Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel
and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Defendant and Respondent
BNSF Railway Company.
Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and
Respondent BNSF Railway Company.
Page 3 – S219534 & S219919 counsel continued
Counsel:
Louis P. Warchot, Daniel Saphire; Murphy, Campbell, Alliston & Quinn and Stephanie L. Quinn for
Association of American Railroads as Amicus Curiae on behalf of Defendant and Respondent BNSF
Railway Company.
King & Spalding, Peter A. Strotz, Steven D. Park and Ethan P. Davis for Western States Petroleum
Association as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ted W. Pelletier
Kazan, McClain, Satterley & Greenwood
Jack London Market
55 Harrison Street, Suite 400
Oakland, CA 94607
(510) 302-1000
Lisa Perrochet
Horvitz & Levy
Business Arts Plaza
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505-4681
(818) 995-0800
Michael B. Gurien
Walters Kraus & Paul
222 North Sepulveda Boulevard, Suite 1900
El Segundo. CA 90245
(310) 414-8146
Theodore J. Boutrous Jr.
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90071-3197
(213) 229-7000