Daily Blast June 3, 2014

The California Court of Appeal, Second Appellate District, Division Five (LA), issued an opinion in Haver v. BNSF Railway Co. (June 3, 2014, B246537) __ Cal.App.4th __, analyzing issues of premises liability to third parties based on off-site exposure to asbestos. The Court of Appeal affirmed the holding in Campbell v. Ford Motor Co.(2012) 206 Cal.App.4th 15 (“Campbell”), that a premises owner does not have a 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. (Slip opn., pp. 2, 5.)

The case arose out of a wrongful death action based on premises liability brought by the survivors of a woman who died of mesothelioma as a result of exposure to asbestos from her former husband’s work clothes. (Slip opn., p. 2.) The former husband was employed by the Santa Fe Railway, the predecessor to defendant BNSF Railway Company (“BNSF”) in the 1970’s. The former husband was exposed to products and equipment containing asbestos on BNSF’s premises on numerous occasions during the course of his employment. The asbestos adhered to his clothing and was transferred to the couple’s home. (Ibid.) The trial court sustained the defendant’s demurrer to the wrongful death complaint without leave to amend finding that under Campbell, supra, 206 Cal.App.4th 15, the defendant did not owe the plaintiff a duty of care in an action based on premises liability. (Id. at p. 3.)

On appeal, plaintiffs argued that Campbell, was distinguishable because in Campbell the employees exposed to asbestos did not work for the defendant, but instead were employed by a subcontractor. Plaintiffs asserted that in the instant action, the former husband was a direct employee of the railroad.  (Slip opn., p. 5.)  The court disagreed, holding that Campbell “made clear that its no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency of their contact with the worker who was exposed on the premises, or the worker’s employment relationship with the landowner.” (Id. at pp. 6, 8, italics in original.)  The court also rejected plaintiffs’ argument that Campbell was wrongly decided. (Id. at p. 6.)  According to the court, “[while] the hazardous nature of asbestos troubles [courts] such that they want to allow recovery to its victims, the courts are also wary of the consequences of extending employers’ liability too far, especially when asbestos litigation has already rendered almost one hundred corporations bankrupt.”  Thus, most courts have “held that such plaintiffs did not have a cause of action against the premises owners because the plaintiffs could not satisfy the necessary element of duty of care.”  The majority view is that “finding such a duty would upset traditional tort law, be unworkable in practice, and result in unsound public policy.” (Id. at pp. 6-7.)

Finally, the Court of Appeal distinguished the new Court of Appeal opinion in Kesner v. Superior Court (May 15, 2014, No. A136378) __ Cal.App.4th __ [2014 Cal.App. Lexis 424] (“Kesner”), which held that manufacturers of products containing toxins have a duty of care to persons who have extensive contact with employees exposed to those toxins, and who suffer secondary exposure and injury as a consequence. The court distinguished Kesner on the ground that Kesner involved a products liability cause of action, not a premises liability cause of action. (Slip opn., pp. 7-8.) According to the court, “Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action.” (Id. at p. 8.) Thus, the Court of Appeal affirmed the trial court’s order because BNSF did not owe the decedent a duty of care. (Ibid.)

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