In past years, second-hand asbestos exposure claims against product manufacturers and premises owners have increased with the decline of the more traditional asbestos exposure cases. These ‘bystander’ plaintiffs allege that they were exposed to asbestos through their spouses or others who had asbestos fibers on their clothing or work gear when they came home, even if said plaintiffs have never set foot on the defendants’ premises.
Until recently, courts had held that a duty exists between these defendants and third party non-employees. However, all this is about to change with the most recent California Appellate Court opinion holding that premises defendants cannot be found liable under a bystander asbestos exposure claim. On May 21, 2012, the Court of Appeal of the Second Appellate District of California in Campbell v. Ford Motor Company held that an employer has no duty to protect family members of employees from secondhand exposure to asbestos used during the course of the employer’s business.
In the Campbellappellate decision ruling for the premises defendants, defendant Ford Motor Company entered into contracts in the mid-1940s for the construction of a new Lincoln-Mercury assembly plant, including asbestos insulation work. Ford knew asbestos was being installed on its premises.
In 2004, Eileen Honer was diagnosed with mesothelioma and shortly thereafter initiated this case asserting a premises liability cause of action against Ford (among other defendants), alleging her father and brother had worked as asbestos insulators at various Ford job sites between 1947 and 1948. Honer claimed that she did the family laundry and that before washing her father’s and brother’s work clothes, she would have to shake them out because they were “dusty”.
Honer’s expert, Victor Roggli, M.D., testified that as a result of doing laundry, Honer received a substantial exposure to asbestos. In addition, Dr. Roggli said that by 1930, it was known that asbestos was a toxic substance that could cause fatal lung disease and it was known that bystanders were at risk of exposure, among others. Ford’s own expert witness acknowledged that in 1930, “exposure to asbestos could be hazardous to human health, and the occupational health community –including the industrial hygiene community – knew of these findings in the 1930s.”
At the end of trial, the jury determined in its special verdict that, as to the issue of duty: Ford was negligent in its use or maintenance of the property during the time Honer’s father and brother worked on the premises and Ford’s negligence was a substantial factor in causing harm to Honer. Ford then filed its appeal as to that issue claiming that it owed the plaintiff no duty in this case. The Court of Appeal agreed on this point and therefore reversed the ruling.
As to the issue of duty, the Court of Appeal articulated the issue before them as whether an employer has a duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business. Ford’s position was that it owed Honer no duty as a matter of law because a “property owner is not responsible for injuries caused by the acts or omissions of an independent contractor unless the property owner controlled the work that allegedly caused the injury, or failed to warn of a known pre-existing concealed hazardous condition on the property.” Conversely, Honer contended that a premises owner who knows or reasonably should know of a condition on the premises, that the owner should foresee exposes persons to an unreasonable risk, and who has no basis for believing that others will discover the condition or realize the risk involved, is under a duty to exercise ordinary care—either to make the condition reasonably safe for others’ use or to give a warning adequate to enable others to avoid the harm.
The Court of Appeal’s examination of the Rowland factors led it to the conclusion Ford owed Honer no duty of care. “The general rule in California is that ‘[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’ (Civ. Code, § 1714, subd. (a).) In other words, ‘each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .”’(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, quoting Rowland v. Christian [(1968)] 69 Cal.2d [108,] 112.) In the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where clearly supported by public policy. (Cabral supra 51 Cal.4th 771.)
In this case, the Court of Appeal opted to issue a broader decision covering a general class of cases as opposed to providing a specific opinion that focused only on the particulars of this case. By doing so, the Court of Appeal evaluated the Rowland factors at a relatively broad level of factual generality. Citing Cabral, the Court of Appeal stressed that, “as to foreseeability, we have explained that the court’s task in determining duty ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . .”
The Court of Appeal went on to hold that foreseeability of a potential risk or injury is not sufficient to create an independent tort duty as policy considerations should be taken into account for and against imposition of liability. In this case, the Court of Appeal held that even assuming a property owner can reasonably be expected to foresee the risk of latent disease to employees’ family members secondarily exposed to asbestos used on its premises, strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure. Thus, the Court of Appeal found that an employer has no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business.
In conclusion, it appears that this Campbelldecision will significantly impact the present landscape of California case law regarding bystander asbestos exposure claims. Duty based on foreseeability will no longer be the key issue that courts will focus on “bystander” asbestos exposure cases. Instead, what the issue will likely now also hinge upon is the nature of the relationship, or lack thereof, between the employer and the household member, among other policy considerations.
 Honer died on November 6, 2009 after judgment was entered in her favor. Her daughter, Mary Campbell, continued this action as her mother’s successor-in-interest pursuant to California Code of Civil Procedure section 377.32.
Arabelle Aportadera-Torres is a Senior Associate at Morris Polich & Purdy
in Los Angeles, CA.