Specifically, the court granted preferential review of the issue:


“If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?”


As background, recent California appellate rulings distinguished the liability of manufacturers and landowners in secondary-exposure cases—manufacturers have a duty to warn third-parties of exposure to asbestos carried off-site by an employee; landowners sued in premises liability actions, however, have no equivalent duty to warn identical third-parties. The distinction is outlined by two cases the California Supreme Court is reviewing: Kesner v. Superior Court (May 15, 2014, No. A136378) and Haver v. BNSF Railway Co. (June 3, 3014, No. BC435551).


In Kesner, the California First District, Division Three, overruled the trial court’s nonsuit for defendant-manufacturer Pneumo Abex, LLC. Plaintiff Kesner alleged he contracted mesothelioma through exposure to asbestos brought home from his uncle’s longtime employment with defendant-manufacturer Pneumo Abex, LLC. The court found Pneumo Abex, LLC as a manufacturer had a duty to warn Plaintiff of potential exposure to asbestos brought home on his uncle’s clothing.


By contrast, in Haver the California Second Appellate District upheld a sustained demurrer in favor of defendant BNSF. In Haver, Plaintiff brought a premises liability action against BNSF Railroad for the wrongful death of Lynn Haver. Lynn Haver suffered severe throat cancer and mesothelioma which eventually proved fatal. Her survivors sued BNSF in premise liability claiming BNSF employed Lynn’s husband who brought home asbestos fibers from BNSF’s premises.


In analyzing the BNSF’s duty to Plaintiff Haver, the court distinguished the earlier Kesner decision as a negligent manufacturer case. Following the reasoning in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the court held BNSF, as a landowner, had no duty to warn third-party Lynn Haver of potential exposure to asbestos off its premises. The Haver court specifically noted the reasoning in Campbell appears correct and parallels the U.S. majority view on premises liability to third-parties for off-site exposure.


Courts throughout the United States have struggled to define what duty, if any, employers—whether manufacturers, premises owners, contractors, suppliers, or others—owe to third parties for potential asbestos exposure away from the worksite. The California Supreme Court’s opinion will clarify this matter for the California courts—and could influence the decisions of all courts struggling with this issue.


Please stay tuned to www.defenselitigationinsider.com  for updates as this case progresses.


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