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Employers may be liable for asbestos-related illnesses that a worker's household members developed after being exposed to microscopic fibers on the worker's clothing and equipment, according to the California Supreme Court.
A former railway employee's wife died from an illness that was allegedly caused by prolonged exposure to asbestos on her husband's clothing.
In the resulting negligence claim, the state high court was ultimately asked to decide if an employer owes a duty of care to prevent secondary or "take-home" exposure to asbestos.
"From a legal standpoint, the question of duty is significant because no liability can be imposed on a defendant under a negligence theory if the defendant does not owe a duty to the plaintiff," explained Lauren Ziegler, an attorney with Kaufman Dolowich & Voluck in San Francisco.
BNSF Railway argued that businesses using asbestos don't have a duty to prevent exposure to nonemployees who have never visited their facilities. But the California Supreme Court disagreed—at least in limited circumstances.
Asbestos is a naturally occurring set of minerals that was commonly used in manufacturing and construction because of its resistance to heat and corrosion. But the substance can be deadly when its microscopic fibers are inhaled over a prolonged period.
Accordingly, its use is now heavily regulated and lawsuits abound over employer and landowner liability for asbestos exposure.
[SHRM members-only toolkit: Complying with California Safety Standards]
Employers generally owe a duty of care to their employees. However, the interesting question in this case is whether that duty extends to an employee's household or family members when harmful asbestos fibers are carried home on clothing and equipment.
The California high court said it comes down to foreseeability. "We hold that the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of onsite workers," Justice Goodwin Liu wrote for the court
"Where it is reasonably foreseeable that workers, their clothing or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission," Liu said.
However, not everyone who comes into contact with a worker's asbestos-laden clothing is owed a duty of care by the employer.
"It appears that the court found a workable limit by recognizing a duty owed by an employer or property owner to prevent take-home asbestos that extends only to members of the worker's household," Ziegler said.
The court noted that "[b]y drawing the line at members of a household, we limit potential plaintiffs to an identifiable category of persons who, as a class, are most likely to have suffered a legitimate, compensable harm."
The California Supreme Court opted not to limit employer liability to workers' immediate family members. It said that the legal or biological relationship between the parties wasn't the reason for the ruling, rather "the general foreseeability of harm turns on the regularity and intimacy of physical proximity … between the asbestos worker and a potential plaintiff."
"It is important to note from an employment law standpoint that, although this decision has imposed a duty on employers to its employees' cohabitants, the holding is confined to the asbestos litigation realm," Ziegler said.
The case is Haver v. BNSF Railway, Cal., S219919 (Dec. 1, 2016).
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