Kesner v. Superior Court of Alameda County
1 Cal. 5th 1132
| Cal. | 2016Background
- Two consolidated cases (Kesner and Haver) involve alleged "take-home" (secondary) asbestos exposure: household members developed mesothelioma after alleged exposure to asbestos carried home by employees.
- Kesner: Johnny Kesner alleged exposure from his uncle George, a Pneumo Abex employee who worked with asbestos in the 1970s; trial nonsuit reversed by Court of Appeal; Supreme Court remanded for further proceedings on household status.
- Haver: Lynne Haver (decedent) allegedly exposed via her husband Mike, a BNSF predecessor employee; Court of Appeal had affirmed a demurrer relying on Campbell (Cal.App.) to reject premises-liability duty to household members.
- Central legal question: whether employers or premises owners owe a duty of ordinary care to prevent secondary asbestos exposure to nonemployees who never visited the workplace, and if so, who is within the class of protected plaintiffs.
- The Court held employers and premises owners owe a duty to prevent take-home asbestos exposure when it is reasonably foreseeable workers will carry fibers home, but limited that duty to members of the worker’s household (not all contacts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employers/premises owners owe a duty to prevent take-home asbestos exposure | Kesner/Haver: use of asbestos made take-home exposure foreseeable; defendants should take precautions to prevent it | Abex/BNSF: no duty — imposing one would create unlimited, unmanageable liability to nonemployees | Yes; duty of ordinary care exists to prevent take-home exposure when foreseeable, limited to household members |
| Whether premises liability differs from general negligence on duty to nonemployees | Plaintiff: same duty standard applies; hazards escaping property can injure off-site household members | BNSF: premises liability should not extend to persons who never visited the property | No difference in principle; premises owners can owe the same duty, subject to premises-law defenses (e.g., contractor rules) |
| Scope of protected plaintiffs (how far duty extends) | Plaintiffs: include family/household members exposed by workers | Defendants: would lead to limitless liability (relatives, friends, laundry workers, commuters) | Duty limited to worker’s household members (those in close, regular, sustained contact) |
| Whether foreseeability/regulatory history supports duty | Plaintiffs: OSHA standards and scientific literature by 1970s made take-home exposure foreseeable | Defendants: lack of scientific consensus or that regulation eliminates need for tort duty; policy/practical burdens outweigh duty | Foreseeability established (OSHA and contemporaneous knowledge); policy factors do not support categorical no-duty rule |
Key Cases Cited
- Rowland v. Christian, 69 Cal.2d 108 (1968) (lays out multi-factor duty analysis emphasizing foreseeability and policy)
- Cabral v. Ralphs Grocery Co., 51 Cal.4th 764 (2011) (duty is question of law; Rowland factors guide categorical duty rules)
- Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP, 59 Cal.4th 568 (2014) (discusses duty elements and foreseeability in negligence)
- Bily v. Arthur Young & Co., 3 Cal.4th 370 (1992) (refuses broad duty for accountants due to policy/caseload concerns)
- Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49 (1983) (foreseeability standard: general character of harm controls)
- Weirum v. RKO General, Inc., 15 Cal.3d 40 (1975) (third‑party intervening conduct may be foreseeable and create liability)
- Campbell v. Ford Motor Co., 206 Cal.App.4th 15 (2012) (Court of Appeal decision disapproved to extent it barred take-home claims)
- Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006) (recognizes foreseeability of domestic exposure and duty to spouses/household)
- Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (holds employer owed duty to household members for take-home asbestos exposure)