Login Register Subscribe
Current Issue

Help

BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.

To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.

To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.

Employers liable for asbestos exposure to workers’ families

Reprints

The California Supreme Court unanimously ruled that employers have a duty to prevent asbestos exposure from spreading to the families of their employees exposed to the contaminant.

Johnny Blaine Kesner Jr. was diagnosed with perotineal mesothelioma in February 2011 and filed a lawsuit against defendants he believed were responsible for exposing him to asbestos and causing his mesothelioma, court records show. That included Camden, New Jersey-based Pneumo Abex L.L.C., which employed his uncle George, who was exposed to asbestos fibers released in the manufacture of brake shoes, according to Thursday’s ruling.

Separately, the children of Lynne Haver, who was diagnosed with mesothelioma in March 2008 and died in April 2009, filed a wrongful death and survival action alleging negligence, premises owner and contractor liability, and loss of consortium because they argued that Lynne‘s exposure to asbestos via former husband Mike Haver caused her cancer and death. Mr. Haver was employed by the Atchison, Topeka and Santa Fe Railway, a predecessor of Fort Worth, Texas-based BNSF Railway Co., from July 1972 through 1974, according to court documents.

The Havers and Mr. Kesner alleged that BNSF and Abex, through the use or manufacture of asbestos-containing products, created a risk of harm to the household members of their employees by failing to exercise reasonable care in their use of asbestos-containing materials, according to court documents.

A trial court found that Abex did not owe a duty to Mr. Kesner to prevent his exposure to asbestos, relying on a 2012 precedent in Campbell v. Ford Motor Co. in which the California Court of Appeal found 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. But the Court of Appeal reversed the trial court‘s grant of a nonsuit in the Kesner case, according to the Supreme Court decision.

However, the Court of Appeal upheld a demurrer in the Haver case on the idea that the Campbell decision correctly rejected the claim that premises owners owe a duty of care to household members who suffer take-home exposure to asbestos and distinguished the Court of Appeal‘s decision in the Kesner case on the grounds that Mr. Kesner‘s claim alleged negligence in the manufacture of brake pads while the Havers‘ claim rested on a theory of premises liability.

The California Supreme Court granted review in both cases and consolidated them for argument and decision to determine whether an employer has a duty to members of an employee‘s household to prevent take-home asbestos exposure on a premises liability or negligence theory. The state high court ruled Thursday that employers do hold such a duty.

“We hold 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,” the Supreme Court said in its decision. “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.”

The Supreme Court reversed the Court of Appeal’s decision in the Haver case and remanded it for further proceedings per its ruling. The Supreme Court also vacated the Court of Appeal’s judgment in the Kesner case and remanded it for additional proceedings, including the potential submission of additional evidence on whether Johnny Kesner was a member of George Kesner‘s household for purposes of the duty of care recognized by the court, according to the ruling.