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CA Supreme Court Expands Take Home Asbestos Liability

On December 1, 2016, the California Supreme Court published a seminal decision on the issue of "take home" exposure to asbestos. The issue before the California Supreme Court was whether traditional negligence liability claims should include not just those individuals who had direct contact with a premise owner or an employer, but should also include "household members" who had no direct contact with the premise owner or employer.  In resolving this dispute in favor of the plaintiff bar, the California Supreme Court has now established a legal precedent that will expand claims for asbestos exposure, and other toxic exposures claims, throughout the State of California, as well as created future anticipated battles over the term "household members." 

In its published opinion, Kesner v. Superior Court and Haver v. BNSF Railway Company, the California Supreme Court addressed two conflicting appellate decisions on the issue of "take home" exposure.  In the Kesner case, plaintiffs alleged that Johnny Kesner Jr. was exposed to asbestos from the work clothing of his uncle, George Kesner, who worked at an Abex brake factory.  Johnny Kesner did not live full time with George Kesner, but spent an average of three nights a week at George Kesner's home over a six year time span.  During those visits, plaintiffs claimed that Johnny Kesner inhaled asbestos fibers from George Kesner's work clothing.  In a published appellate decision, the First Appellate District concluded that Pneumo Abex owed a duty of care to protect Johnny Kesner from exposure to asbestos from the work clothing of his uncle. In the Haver case, plaintiffs alleged that Lynne Haver was exposed to asbestos from the work clothing of her former husband, Mike Haver, an employee of the BNSF Railway Company.  Mike Haver worked around pipe insulation and other asbestos containing materials located at BNSF affiliated railyard.  During their marriage, Lynne Haver allegedly inhaled asbestos fibers from Mike Haver's work clothing.  In contrast to the Kesner decision, the Second Appellate District in Haver held that BNSF Railway Company did not owe a duty of care to protect the spouse of its employee.

Faced with two contradictory appellate decisions, the California Supreme Court consolidated the appeals in the Kesner and Haver cases and heard oral argument on September 7, 2016.  As we reported following those oral arguments, the questions posed by the California Supreme Court justices strongly suggested that the Court might issue a ruling favorable to the plaintiffs.   

In this final ruling, the California Supreme Court has now resolved the conflict between the appellate courts and has also provided the plaintiff bar with a roadmap for pursuing "take home" exposure claims.  At the heart of its decision, the California Supreme Court has concluded that an employer or property owner owes a duty to prevent take home exposure to members of the worker's household, regardless of their formal relationship.  As the Court decision confirms, these take home exposure claims will now include any "persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time."  In its decision, the California Supreme Court emphasized that its ruling creates a bright line distinction between "household members" versus those with only a "casual" relationship, such as a regular carpool companion.  However, the facts of the Kesner case suggest that the distinction might not provide the "bright line" the Court hoped to create.  Rather than putting the issue to rest, this California Supreme Court decision has now created a new battle line over the definitions of "household members," as well as "close and sustained contact," definition that litigants will now grapple with in the years to come.