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.
In the first case, Johnny Blaine Kesner, Jr., was diagnosed with perotineal mesothelioma in February 2011. He filed suit against a number of defendants he believed were responsible for exposing him to asbestos and causing his mesothelioma.
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.
In the companion case, 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 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.
Neither the Havers’ nor Kesner’s suit reached a jury as a result of the holding in 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 California Supreme Court granted review in both cases and consolidated them for argument and decision. The dismissal of their cases was reversed in Kesner v Superior Court.
In reversing the California Supreme Court held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos 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, the Supreme Court held that this duty extends only to members of a worker’s household. Because the duty is premised on the foreseeability of both he regularity and intensity of contact that occurs in a worker’s home, it does not extend beyond this circumscribed category of potential plaintiffs.
The obvious question that arises out of this decision is what other types of toxic claims will follow? Or will this case be strictly limited to asbestos exposure? If not limited only to asbestos, the potential for this case to open a Pandora’s box of secondary claims by immediate family members of workers injured by toxic materials in the workplace will no doubt follow. These secondary claims will not be limited to worker’s compensation by the exclusive remedy rule, and it is unclear what insurance, if any, will be responsible for indemnification.