California Court of Appeal Limits Liability For Secondary Exposure
The California Court of Appeal recently affirmed an award of summary judgment in favor of Shell Oil Co., ruling Shell was not liable for secondary off-premises asbestos exposure. (Beckering v. Shell Oil Company (Ct. of App., 2nd District, Div. 3, 2014, No. B254407).) In affirming the trial court’s judgment, the Court of Appeal preserved a bright-line rule established by the Court of Appeal in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15.
Campbell v. Ford Motor Co.
Campbell involved secondary exposure by a family member who laundered asbestos-contaminated work clothes. The evidence showed that Ford hired a general contractor to construct a plant in the 1940’s; the contractor hired a subcontractor; and the subcontractor hired another subcontractor, which employed the plaintiff’s father and brother. The plaintiff’s father and brother were allegedly exposed to asbestos on the job. The plaintiff claimed she was exposed to asbestos when she shook out and laundered her father’s and brother’s work clothes. The plaintiff filed a premises liability action against Ford, alleging she contracted mesothelioma as a result of her secondary exposures to asbestos. Following a jury verdict, the trial court entered judgment in favor of the plaintiff.
On appeal, the Campbell court stated the issue as follows: “whether a premises owner has 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.” In determining whether or not Ford owed a duty of care to the plaintiff, the Campbell court applied the Rowland factors, which determine the scope of a duty owed. The Rowland factors include the following:
- The foreseeability of harm to the plaintiff;
- The degree of certainty that the plaintiff suffered the injury;
- The closeness of the connection between the defendant’s conduct and the injury suffered;
- The moral blame attached to the defendant’s conduct;
- The policy of preventing future harm;
- The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
- The availability, cost, and prevalence of insurance for the risk involved.
(Rowland v. Christian (1968) 69 Cal.2d 108, 113.)
The Campbell court concluded that even if it were foreseeable to Ford that workers on its premises could be exposed to asbestos dust and fibers, the “closeness of the connection” between Ford’s conduct (hiring a general contractor) and the injury to a workers’ family member off the premises was “attenuated.” The Campbell court further opined that “strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure.”
Accordingly, the trial court’s decision was reversed, and the Court of Appeal held that a “property owner has no 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.”
Beckering v. Shell Oil Co.
Just as with Campbell, Beckering involved secondary exposure as a result of laundering asbestos-contaminated work clothes. Plaintiff Wanda Beckering’s late husband, Frank Beckering, worked for Shell as a machinist from 1954 until 1992. Ms. Beckering alleged she developed mesothelioma after being exposed to asbestos brought home on her husband’s clothing while he worked at Shell’s facilities. While Ms. Beckering claims she laundered her husband’s clothing during the course of his employment with Shell, she never visited the Shell facilities where her husband worked.
On August 14, 2013, Ms. Beckering filed suit against numerous defendants, including Shell. The Complaint asserted causes of action for products liability and premises liability. On January 10, 2014, Shell moved for summary judgment, asserting it owed no duty of care to Ms. Beckering. Shell relied on Campbell in contending the premises liability claim was barred as a matter of law.
In opposing Shell’s motion for summary judgment, Ms. Beckering contended the facts in Campbell were distinguishable from the facts at bar because the connection between the plaintiff’s injury and Ford’s conduct was too attenuated to support a duty of care. Ms. Beckering argued there was no evidence that Ford provided the insulation used by the insulation subcontractor or that Ford exercised any control over the insulation work performed by the subcontractor. By contrast, Ms. Beckering argued her husband was an employee of Shell and performed work under Shell’s direct and unfettered control.
On February 14, 2014, the trial court granted Shell’s motion for summary judgment. Ms. Beckering appealed, contending in relevant part that California law supports a duty of care owed by employers to family members of employees to prevent their secondary asbestos exposure.
On appeal, Ms. Beckering argued that Campbell limits the duty of premises owners only with respect to family members of independent contractors on their premises, and therefore Campbell’s holding must be limited to those facts and issues. The Court of Appeal, however, rejected this argument, noting that Campbell’s analysis did not turn on such a distinction. Accordingly, the Court of Appeal concluded that Campbell was correctly decided and controlling.
Guided by Campbell, the Court of Appeal affirmed the trial court’s award of summary judgment, and concluded that based upon the Rowland factors:
[A] premises owner has no duty to protect a family member from secondary exposure to asbestos off the premises arising from her association with a family member who wore asbestos-contaminated work clothes home. To hold otherwise would impose limitless liability on premises owners.
This recent ruling confirms the limits on California property owners’ liability for secondary exposure claims.
ABOUT THE AUTHOR: Morgan Van Buren is an associate at Tyson & Mendes LLP. He specializes in personal injury and high net worth insurance issues. Contact Morgan at 858.263.4107 or firstname.lastname@example.org.
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