Employers and premises owners in California are now liable for asbestos-related cancers and related injuries suffered by family and household members of employees who bring home asbestos dust from their worksites. California joins Tennessee, New Jersey and Louisiana in recognizing property owner’s/operator’s liability for “take-home exposure” claims.
On December 1, 2016, in Kessler v. Pneumo Abex, No. S219534 and Haver v. BNSF Railway Company, S219919, the California Supreme Court in a unanimous decision, specifically answered affirmatively question that employers and landowners under California law owe a duty of care to prevent secondary exposure to asbestos and can be held liable in civil lawsuits if they do not comply with the duty which is retroactive in nature. The California Supreme Court held that under California Civil Code 1714, there is 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. Therefore, the Court rationalized, that it was not creating a new duty, but only deciding if an exception to Civil Code 1714 should be created. The Court rejected the premise that an exception should be created for “take home” asbestos exposures issues, recognizing that it was making a judgment call as to social burdens imposed under the law.
In part, the Court rationalized its opinion on the basis that in 1972 OSHA published its first regulations for employees using asbestos and that the OSHA Standards required employers to take precautions to prevent asbestos traveling from the worksite, including having showers and change of clothing facilities for employees. Because the alleged exposures to the family members in both Haver and Kessler occurred after 1972, the Court said the defendants were liable for the decedents’ mesothelioma.
Recognizing that the duty to prevent “take home” exposures expanded the list of possible plaintiffs, the Court said it was only expanding that duty to “household” members (and not merely “family members”) rather than the public at large who may have contract with asbestos workers.
California rejected the position of other states including New York, Delaware, Texas, Pennsylvania, Michigan, and Illinois which have either explicitly rejected liability for “take home” exposures, or have severely restricted such liability to specific situations. Missouri Courts have yet to specifically address this issue.
Employers and premises owners should recognize that Missouri Courts could follow this California opinion.
Employers and premises owners need to know that they could face asbestos related claims from non-employees who have been exposed through others for the next 50 years.
