The Supreme Court of California has held that it is the duty of employers and premises owners to exercise ordinary care in their use of asbestos, which includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. The court found that 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. Furthermore, premises owners who use asbestos on their property are also subject to this obligation. Because the duty is premised on the foreseeability of both the regularity and intensity of contact that occurs in an employee’s home, the court concluded that the duty is limited to the members of a worker’s household. A copy of the court’s opinion in Kesner v. Superior Ct. of Alameda County, 2016 WL 7010174 (Ca. Dec. 1, 2016), can be found here.
The court considered two consolidated cases alleging take-home exposure to asbestos in the mid-1970’s. In one case, the plaintiff alleged he developed mesothelioma by being exposed to asbestos during weekly visits to the home of his uncle, who worked at an Abex plant, where his uncle carried home asbestos dust on his work clothes. In the second case, the plaintiff alleged exposure through her former husband, a BNSF railroad employee who worked with asbestos from pipe insulation and other products, including exposure to asbestos through contact with his clothing, tools and vehicle. The complaints alleged that claimants died from their respective asbestos-related diseases.
The court held that take-home asbestos exposure was “generally foreseeable,” noting that 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.” Defendants would not need to know “the precise… manner” that exposure occurred in order to recognize the general risk posed by workers leaving an area with airborne dust-based toxins and then coming into contact with members of their households. Also, during the time periods at issue (the mid-1970’s), regulations recognized the potential risks of asbestos traveling outside a worksite.
The court found that some limitation on the scope of the duty was appropriate. The court held that an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, which limited the potential plaintiffs to an identifiable category of persons who, as a class, were most likely to have suffered a legitimate and compensable harm. With respect to premises owners, the court found that California law recognizes a property owner’s liability for harm caused by substances that escape the property and, while BNSF might have fact specific defenses, the premises liability claim is subject to the same requirements and same duty analysis that applies to the claim of general negligence.
Also, the court noted it was not resolving the ultimate issue of liability and plaintiffs must still establish the elements necessary to obtain a judgment and defendants may assert defenses or present contrary evidence. Lastly, the court distinguished authority from other jurisdictions that rejected a duty to prevent take-home exposure to asbestos noting different facts, theories of liability, or state specific law regarding tort liability. The court concluded that its decision was “in harmony” with decisions from other courts that applied similar law to similar facts and found take-home exposure to be reasonably foreseeable.