In December 2016, the California Supreme Court ruled that under California law, companies that use asbestos in the workplace have a duty to act with reasonable care to protect their workers’ household members from “secondary exposure” to asbestos. This kind of exposure can occur when workers bring asbestos fibers home on their work clothing, tools, vehicles, or persons.
In the sections that follow, we’ll explain exactly what the court decided, and how this ruling affects California asbestos claimants.
The California Supreme Court tackled whether companies owe a duty to protect workers’ families in two consolidated cases, Kesner v. Pneumo Abex LLC and Haver v. BNSF Railway Company.
Johnny Kesner brought suit against Abex after being diagnosed with peritoneal mesothelioma, a cancer of the lining of the abdomen. For several years in the 1970s, Johnny often stayed overnight at his uncle’s house. Johnny’s uncle worked at Abex, a company that manufactured asbestos brake shoes. Johnny alleged that his mesothelioma was caused by exposure to asbestos that his uncle brought home on his clothing after working all day at the Abex plant.
Lynne Haver died from mesothelioma of the pleura, the lining of the lungs. Her children brought suit, alleging that she was exposed to asbestos that her former husband had brought home when working as a fireman and hostler for BNSF, a railroad company, in the early 1970s.
In these cases, the Supreme Court refused to carve out an exception to the general rule in negligence law that everyone has a duty to use reasonable care to prevent foreseeable injury to others. The Court focused on two main factors: foreseeability of the injury and public policy concerns.
The California Supreme Court concluded that it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them, and in the process expose members of their household. The Court said, “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.”
The court also considered the existence of Occupational Safety and Health Administration (“OSHA”) regulations beginning in 1972, which set a ceiling for worker exposure to asbestos and required special clothing and changing rooms for asbestos workers.
The court found that, based on the regulations meant to prevent exposure to asbestos (which were in place at the time these claimants were exposed) there was and still is a strong public policy limiting or forbidding the use of asbestos. Also, preventing asbestos-related injuries to workers‘ household members does not impose a greater burden on companies, who are already charged with preventing unreasonable exposure and injury to the workers themselves. The court noted that offering changing rooms, showers, lockers, and laundry service at the worksite does not unreasonably impact business operations.
Read the full text of Kesner v. Pneumo Abex LLC (PDF file from the California Courts official site).
With this decision, California joins a handful of states -- including Louisiana, New Jersey, Tennessee, and Washington -- that recognize a duty to use reasonable care to protect the families of asbestos workers. The majority of states have found that no such duty exists.
In California courts, anyone diagnosed with an asbestos-related illness can pursue claims for secondary exposure against the company where a family or household member worked with and around asbestos, under a negligence theory of liability.
In addition, household members can also seek remedies against companies that put products on the market to which the workers -- and in turn the household members -- were exposed.
Learn more about Asbestos-Mesothelioma Lawsuits.