In Haver v. BNSF Railway Co., plaintiff Lynn Haver’s former husband Mike worked for the defendant’s railway, and brought home asbestos on his clothes. Years later his wife Lynn contracted mesothelioma and died. Her children sued the employer, BNSF Railway, on a premises liability cause of action. The employer demurred, arguing that the recent Campbell case holds that there is no liability for such “secondary” or “take-home” exposure to asbestos. The plaintiffs opposed, arguing that the more recent Kesner case should apply, holding that an employee’s nephew who was exposed to take-home asbestos could sue the manufacturer for negligence in products liability. The Haver judge agreed with the employer and granted the demurrer, and the court of appeal agreed. Essentially, the court of appeal held that the case was one for premises liability negligence, like Campbell, not for products liability negligence, like in Kesner. Essentially, a manufacturer of asbestos owes farther-reaching duties than a landowner; a manufacturer owes a duty to anyone it’s products foreseeably injure, whether the purchaser or his family, whereas a landowner’s duties extend only as far as the workers and other visitors upon land, and not to their families who claim the workers brought asbestos home on their clothes. Further, the court held that it did not matter whether the defendant landowner was an indirect hirer, like in Campbell (where the worker who brought the asbestos home was an independent contractor of an independent contractor, hired only very indirectly through the defendant landowner), or a direct, true employee of the defendant, like in Haver. Either way, the Campbell rule is a broad one, denying that “a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos … strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure” (Campbell’s language). The Campbell rule applies to “family members of workers” on defendant’s premises, any workers, without distinguishing between direct employees and other contractor’s employees.
There are several issues to be addressed in secondary exposure cases, and a review of the main cases to date may help in analyzing them. The first thing to keep in mind is that the “exclusive remedy” rule of worker’s compensation only applies to the worker himself, not to a family suing for their own injury, much less to the heirs of that family member suing for wrongful death.
The seminal case of Campbell v. Ford Motor Co. was decided by Second District (Los Angeles appellate region), Div. 7, in 2012. In California, courts of appeal are not bound by parallel precedent, though it is highly persuasive. Courts of appeal have to follow the California Supreme Court, but are theoretically not bound by decisions from other appellate districts. In Campbell, plaintiff Mary Campbell contracted mesothelioma, alleged from washing her brother’s and father’s clothes many years ago, during the time they worked for a building contractor that installed asbestos insulation at a Ford plant, while working for an independent contractor hired by a general contractor hired by defendant Ford. She sued Ford in premises liability action, contending that Ford allowed unsafe materials on it’s property, did not properly guard against exposure, etc. The jury found Ford 5% responsible, and Ford appealed. The court weighed the factors that go into a determination of whether a duty is owed, including foreseeability and burden on defendant in trying to prevent the harm, and concluded 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”.
Notably, even though Ford also argued that it shouldn’t be liable because (a) the workers worked for independent contractors, and were not Ford employees, and (b) they were remote hirees of another independent contractor, working for a company not even directly hired by Ford, the Campbell court appears not to have made that the basis of their decision. They said, “Our analysis does not turn on this distinction”, between direct employees or remote hirees of independent contractors. In other words, if you have a case in which the plaintiff’s attorney says “Campbell does not apply to us because my client was a direct employee of the defendant, not a remote, indirect independent contractor”, the response should be that Campbell specifically said it was not hanging it’s hat on that distinction. Instead, the rule is phrased in terms of whether a landowner owes a duty to the family of any worker on it’s premises, no matter who he is working for. Further, the rationale for the rule – foreseeability of injury to family, and burden on industry to prevent it – would appear to apply in equal measure to suits brought by families of others, not just workers, who claim to acquire asbestos on premises. For instance, if the wife of a man who frequented a repair shop acquires mesothelioma, and sues the repair shop on the theory that she got asbestos fibers laundering his clothes, it would not seem a good distinction that Campbell phrased it’s rule in terms of the families of “workers” who acquired asbestos on premises. The same considerations would apply with greater or more force to a patron, or other visitor or invitee on property who did not even rise to the level of worker. If the family of a “worker” cannot sue a landowner for secondary asbestos exposure from washing their clothes, neither should the family of a “patron” or other “invitee”.
A different distinction was successfully made in the Kesner case, however. In Kesner, which is a First District case (San Francisco appellate district), the court very recently held that a family member can sue for secondary exposure, where the defendant is the manufacturer of the asbestos or asbestos-containing component, and where the lawsuit is for negligence in products liability, not premises liability. The Haver court took Kesner into account, but held that the cases were different because Kesner involved suing a manufacturer in products liability whereas Haver involved suing a landowner in premises liability.
The Campbell no-duty rule protects all landowners (and presumably operators) from all take-home asbestos claims based on premises liability, regardless of whether the exposed workers were employees or independent contractors. Family members simply cannot sue the landowner in premises liability for inhaling asbestos carried home on a worker’s clothes. As stated in Haver, “Campbell made clear that it’s no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency of their contact with the worker who was exposed on the premises, or the worker’s employment relationship with the landowner”. This same rule should also apply, for the same reasons, where the defendant land owner / operator has no employment relationship with the exposed party at all – such as where a regular league bowler learns that he has been exposed to asbestos at the bowling alley for years, or a student using a gym in the process of refurbishment takes home asbestos on his clothes. The key to the take-home defense is that it applies to all premises liability claims, regardless of what the exact employment or invitee relationshipis, frequency of contact, etc.
This raises the question of whether a family member can sue their loved one’s employer, etc., in products liability rather than premises liability. Yes, if the defendant is the manufacturer, or someone in the chain of commerce; No, if the defendant is just a place where the victim’s husband worked, shopped, or visited. A products liability claim requires the defendant to be “in the chain of commerce” of a product, i.e., a manufacturer, wholesaler or retailer, but not just someone who has a product around. As an example, in Peterson v. Superior Court, plaintiff hotel guest slipped in a very slippery bathtub and sued not only the tub manufacturer but the hotel for products liability. The California Supreme Court held that while plaintiff could certainly try and sue the hotel in ordinary premises liability for negligence, the hotel did not “sell” plaintiff the bathtub and so she could not sue the hotel for products liability. Incorporating a product into your business model is not the same as being a “seller” of the product or even in the “chain of commerce” of the product. Thus, secondary exposure plaintiffs generally cannot claim that they or their directly exposed family member bought any product from defendant, or that defendant sold asbestos in a product to anyone, unless the defendant was truly engaged in selling an asbestos-containing product, in the ordinary sense of the word “sell”. Just having an asbestos-containing product around, or using it as part of the business, is not enough to trigger products liability; the plaintiff would have to sue for premises liability or ordinary negligence. And there, Campbell would protect the non-seller from any secondary-exposure liability.
Wesierski & Zurek LLP has litigated the secondary-exposure issue and the attempts to get around it. If you have any questions or face any challenges in this area, please feel free to contact one of our partners to discuss.