Does owner of business premises owe duty to protect family members of persons who work there from secondary exposure to asbestos incurred by worker on premises, but exposed to family members away from premises?
In Haver v. BNSF Railway Co. (filed 6/3/14) B246527, Lynn Haver contracted mesothelioma and died as a result of secondary exposure to asbestos. Her former husband was exposed to products and equipment containing asbestos while working for defendant's predecessor railway company in the 1970's. Asbestos evidently adhered to his clothing, and then was transferred to the family home where Lynn was exposed. Survivors of Lynn Haver sued defendant for wrongful death based upon premises liability negligence.
Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the trial court sustained defendant's demurrer without leave to amend, finding no duty. Survivors appealed arguing (1) Campbell is distinguishable on its facts, or, alternatively, incorrectly decided; and (2) a finding of error is compelled by the recent opinion in Kesner v. Superior Court (filed 5/15/14) A136378. The Court of Appeal, Second Appellate District, Division Five, disagreed, affirming the judgment of dismissal.
The appellate court initially focused on the applicability of Campbell. There, the plaintiff brought a premises liability action against Ford based on her father and brother working for a contractor at a Ford plant construction site where asbestos was present. She was exposed to asbestos while laundering their clothing. While Ford argued there was no duty on the part of the property owner for injuries caused relatives of an employee of an independent contractor for that contractor's negligence, the Court of Appeal there reversed the overruling of the demurrer on broader grounds. It found strong policy considerations dictated, as a matter of law, that the premises owner had no duty of care for such secondary exposure. The Haver court agreed with this assessment and found the factual difference of direct employment by the premises owner here made no difference in light of the broad holding of Campbell.