Kesner v. Superior Court of Alameda Cnty.

1 Cal.5th 1132

384 P.3d 283

210 Cal.Rptr.3d 283

Cecelia KESNER, Petitioner,

v.The SUPERIOR COURT of Alameda County, Respondent;

Pneumo Abex, LLC, Real Party in Interest.

Cecelia Kesner, Plaintiff and Appellant,

v.Pneumo Abex, LLC, Defendant and Respondent;

Joshua Haver, et al. Plaintiffs and Appellants,

v.BNSF Railway Company, Defendant and Respondent.

S219534

S219919

Supreme Court of California

Filed December 1, 2016

Weitz & Luxenberg, Benno Ashrafi, Los Angeles, Cindy Saxey, Josiah W. Parker ; Kazan, McClain, Satterley & Greenwood and Ted W. Pelletier, Oakland, for Petitioner and for Plaintiff and Appellant Cecelia Kesner.

Brayton Purcell, Alan R. Brayton, Gilbert L. Purcell and Gary L. Brayton, Novato, as Amici Curiae on behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner.

The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner.

Walters Kraus & Paul, Paul C. Cook and Michael B. Gurien, El Segundo, for Plaintiffs and Appellants Joshua Haver, et al.

The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants Joshua Haver, et al.

No appearance for Respondent Superior Court.

Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Curt Cutting, Encino; Brydon Hugo & Parker, Hugo Parker, Edward R. Hugo, San Francisco, James C. Parker and Jeffrey Kaufman, San Francisco, for Real Party in Interest and for Defendant and Respondent Pneumo Abex, LLC.

McKenna Long & Aldridge, Lisa L. Oberg, San Francisco; McDermott Will & Emery and Colleen E. Baime for CertainTeed Corporation and Honeywell International Inc., as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua, Costa Mesa, for International Association of Defense Counsel and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Fred J. Hiestand, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Deborah J. La Fetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Armstrong & Associates and William H. Armstrong, Oakland, for Resolute Management as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Schiff Hardin and Eliot S. Jubelirer, San Francisco, for Owens-Illinois, Inc., as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Gordon & Rees and Don Willenburg, Oakland, for Association of Defense Counsel of Northern California and Nevada as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Horvitz & Levy, Curt Cutting and Steven Fleischman, Encino, for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Sims Law Firm, Selim Mounedji, Irvine; Gibson, Dunn & Crutcher, Veronica Lewis, Theodore J. Boutrous Jr., Los Angeles, Joshua S. Lipshutz, San Francisco, and Alexander M. Fenner for Defendant and Respondent BNSF Railway Company.

Fred J. Hiestand, Sacramento; Erika C. Frank and Heather L. Wallace, Sacramento, for The California Chamber of Commerce and The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.

Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.

Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua, Costa Mesa, for International Association of Defense Counsel and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.

Deborah J. La Fetra, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent BNSF Railway Company.

Louis P. Warchot, Daniel Saphire ; Murphy, Campbell, Alliston & Quinn and Stephanie L. Quinn for Association of American

Railroads as Amicus Curiae on behalf of Defendant and Respondent BNSF Railway Company.

King & Spalding, Peter A. Strotz, Los Angeles, Steven D. Park and Ethan P. Davis, San Francisco, for Western States Petroleum Association as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.

Liu, J.

These two cases ask whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos. Such exposure, sometimes called domestic or take-home exposure, occurs when a worker who is directly exposed to a toxin carries it home on his or her person or clothing, and a household member is in turn exposed through physical proximity or contact with that worker or the worker's clothing. Plaintiffs in these actions for personal injury and wrongful death allege that take-home exposure to asbestos was a contributing cause to the deaths of Lynne Haver and Johnny Kesner, and that the employers of Lynne's former husband and Johnny's uncle had a duty to prevent this exposure. Defendants argue that users of asbestos have no duty, either as employers or as premises owners, to prevent nonemployees who have never visited their facilities from being exposed to asbestos used in defendants' business enterprises.

After the trial and appellate courts in these two cases reached varying conclusions as to the existence of this duty, we granted review and consolidated both cases for oral argument and decision to address the following questions: Does an employer that uses asbestos in the workplace have a duty of care to protect employees' household members from exposure to asbestos through off-site contact with employees who carry asbestos fibers on their work clothing, tools, vehicles, or persons? How, if at all, does this duty differ when the plaintiff states a claim for premises liability rather than general negligence? If an employer or premises owner has such a duty, is that duty limited to immediate family members or to members of the employee's household? Or does the duty extend to visitors, guests, or other persons with whom the employee may come into contact?

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. 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. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. Importantly, we hold that this duty extends only to members of a worker's household. Because the duty is premised on the foreseeability of both the regularity and intensity of contact that occurs in a worker's home, it does not extend beyond this circumscribed category of potential plaintiffs.

I.

Johnny Blaine Kesner, Jr., was diagnosed with perotineal mesothelioma in February 2011. (Because this case involves family members with the same last name, we use individuals' first names for clarity.) Johnny filed suit against a number of defendants he believed were responsible for exposing him to asbestos and causing his mesothelioma. These defendants included Pneumo Abex, LLC (Abex). Johnny's uncle, George Kesner, worked at the Abex plant in Winchester, Virginia, for much of George's life, where George was exposed to asbestos fibers released in the manufacture of brake shoes. According to George, Johnny spent an average of three nights per week at his uncle's home from 1973 to 1979. When Johnny was at his uncle's home, he would sometimes sleep near George or roughhouse with George while George was wearing his work clothes. Johnny alleged that his exposure to asbestos dust from the Abex plant, carried home on his uncle's clothes, contributed to his contracting mesothelioma. Johnny died in December 2014, after the Court of Appeal issued its judgment in this matter. Cecelia Kesner is his successor in interest.

Lynne Haver was diagnosed with mesothelioma in March 2008 and died in April 2009. Her children, Joshua Haver, Christopher Haver, Kyle Haver, and Jennifer Morris (the Havers), filed a wrongful death and survival action alleging negligence, premises owner and contractor liability, and loss of consortium. They allege that Lynne's exposure to asbestos by way of her former husband, Mike Haver, caused her cancer and death. Mike was employed by the Atchison, Topeka, and Santa Fe Railway, a predecessor of BNSF Railway Company (BNSF), from July 1972 through 1974. In his position as fireman and hostler for BNSF, Mike was exposed to asbestos from pipe insulation and other products. The Havers allege that Mike carried home these asbestos fibers on his body and clothing, and that Lynne was exposed through contact with him and his clothing, tools, and vehicle after she began living with him in 1973.

Mesothelioma is a cancer of the chest and abdomen closely associated with asbestos...