In Campbell v. Ford Motor Company, No. B221322 (May 21, 2012), the Second District Court of Appeal ruled that Ford owed no duty to protect family members of employees from secondary exposure to asbestos used during the course of an employer’s business. Campbell is a landmark decision because it is the first published decision in California to recognize and analyze a “take-home” exposure claim in asbestos litigation.
“Duty” is a legal relationship arising from a standard of care, a violation of which subjects the actor to liability. Duty in take home exposure claims is a required element for a cause of action for negligence. For a plaintiff to bring a negligence action in California, there must exist a legal duty of care running from the defendant to the plaintiff.
The general rule regarding duty in California is embodied in California Civil Code Section 1714, which states that everyone is responsible for an injury occasioned by another by his or her want of ordinary care or skill in the management of his or her property or person. Hence, 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.
In the landmark case Rowland v. Christian, 69 Cal. 2d 108, 113 (1968), the California Supreme Court identified several considerations that, when balanced together, could justify a departure from the duty to use ordinary care:
“[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered 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.”
In evaluating the Rowland factors, a court’s task in determining whether a duty existed “‘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 . . . .'”
Exceptions to this general rule may be made. Absent a statutory provision establishing an exception to the general rule, courts should create an exception only where it is “clearly supported by public policy.” In addition, such exceptions should be made as clear, bright line rules of law that could be applied to a general class of cases.
Campbell was a wrongful death case venued in Los Angeles County. The plaintiff claimed that her mother, Eileen Honer, acquired mesothelioma, a lung disease generally attributed to asbestos exposure. Ms. Honer’s father and brother worked as insulation contractors at various job sites, including a Ford automobile manufacturing plant in New Jersey in the 1950s. Ms. Honer’s father and brother were exposed to asbestos-containing products which caused their clothing, bodies, vehicles, and tools to be contaminated with respirable asbestos fibers. Ms. Honer was responsible for shaking out and washing the clothes of her father and brother when they arrived from work, thereby exposing her to the asbestos fibers.
At trial, the plaintiff’s expert testified that, as early as the 1900s, the dangers of toxic substances being transferred from the workplace to the home through workers’ clothing, as well as methods for preventing such take home exposures, were known. Ford’s expert also testified that the company was aware of the hazards of asbestos as far back as the 1930s. The trial court case resulted in a plaintiff verdict on a theory of premises liability. Under this theory, the jury found, among other things, that 1) Ford owned the Ford-Lincoln Mercury plant; 2) it was negligent in its use or maintenance of the property during the time Ms. Honer’s father and brother worked on the premises; 3) Ford’s negligence was a substantial factor in causing harm to Ms. Honer; and 4) Ms. Honer suffered damages in the amount of $800,000.
Ford appealed and argued, among other things, that Ford owed no duty of care to Ms. Honer.
The Second District reversed the judgment, finding that Ford owed no duty of care to Ms. Honer. The court of appeal identified the central issue in the case 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.” To determine this issue, the court of appeal examined the Rowland factors.
Ms. Honer’s Injury Was Not Foreseeable
First, the Second District examined the factors of “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant’s conduct and the injury suffered . . . .” According to the court, the purpose of the plaintiff’s presence on the property, while not determinative, had to be considered along with other circumstances. Such a factor determined the scope of a landowner’s duty, which was whether in the management of his property the landowner acted as a reasonable person in view of the probability of injury to others. The court also acknowledged that the duty generally was owed to the class of persons which was “reasonably foreseeable may be injured as the result of the actor’s conduct.”
Ford acknowledged that Ms. Honer suffered an asbestos-related injury. However, the Second District recognized that while she sought to hold Ford liable for its management of its premises, it was undisputed that she never set foot on those premises. Instead, it was alleged that her father and brother brought asbestos dust home on their clothing after working on Ford’s property and, more than fifty years later, she was diagnosed with mesothelioma from this exposure.
The Second District also noted that “‘[g]enerally speaking, where the injury suffered is connected only distantly and indirectly to the defendant’s negligent act, the risk of that type of injury from the category of negligent conduct at issue is likely deemed unforeseeable. Conversely, a closely connected type of injury is likely to be deemed foreseeable.'”
Here, “[e]ven if it was foreseeable to Ford that its employees could be exposed to asbestos dust as a result of the work performed on its premises, the ‘closeness of the connection’ between Ford’s conduct in having the work performed and the injury suffered by an employee’s family member off of the premises was far more attenuated.” The element of a legal duty of care generally acted to limit ‘the otherwise potentially infinite liability that would flow from every negligent act.'”
It Would Be Against Public Policy To Impose A Duty Of Care Upon Ford
Next, the Second District applied the other factors of Rowland, specifically “whether the public policy factors identified in Rowland–‘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’–justified creating a duty exception in this case.” The court emphasized that “‘[t]he overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible. The policy question is whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.'” The court recognized that in some cases, when the consequences of a negligent act must be limited to avoid an intolerable burden on society, “‘policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk.'”
Applying these factors to the case, the Second District found that even assuming a property owner reasonably could be expected to foresee the risk of employees’ family members acquiring a latent disease after they were secondarily exposed to asbestos used on its premises, there were strong public policy considerations against imposing a duty of care on property owners for such secondary exposure.
The Second District noted that courts required a higher degree of moral culpability such as where defendants (1) intended or planned the harmful result, (2) had actual or constructive knowledge of the harmful consequences of their behavior, (3) acted in bad faith or with a reckless indifference to the results of their conduct, or (4) engaged in inherently harmful acts. Ford’s conduct did not rise to such a high degree.
The Second District also determined that the next two Rowland factors–the extent of the burden to the defendant and the consequences to the community if the court imposes on a particular defendant a duty of care toward the plaintiff–weighed heavily against Ms. Honer. The court found that it would be difficult to draw the line between those nonemployee persons to whom a duty was owed and those nonemployee persons to whom no duty was owed. The court relied upon the reasoning of Oddone v. Superior Court, 179 Cal. App. 4th 813, 822 (2009). In that case, Geraldine Oddone filed a lawsuit against her husband’s employer, Technicolor, Inc., after her husband died from a brain tumor. Ms. Oddone alleged that her husband brought home from work toxic vapors and chemicals on his clothing and person and that she was injured by exposure to those substances. Technicolor filed a demurrer in response to the complaint on the ground that it owed no duty of care to Ms. Oddone, which the trial court sustained without leave to amend. The Second District affirmed the dismissal.
Applying the reasoning from Oddone, the Second District found that imposing a duty upon Ford in the case’s circumstances would be against public policy. First, imposing such a duty would create problems in determining the size and scope of the class of plaintiffs to which this duty would be owed:
“Including ‘all family members’ into the former category would be too broad, as not all family members will be in constant and personal contact with the employee. Limiting the class to spouses would be at once too narrow and too broad, as others may be in contact with the employee and spouses may not invariably be in contact with the employee. Limiting the class to those persons who have frequent and personal contact with employees leaves at large the question what ‘frequent’ and ‘personal’ really means. This is only a sampling of the problem.”
The Second District particularly found that “in a case such as Honer’s, where the claim is that the laundering of the worker’s clothing is the primary source of asbestos exposure, the class of secondarily exposed potential plaintiffs is far greater, including fellow commuters, those performing laundry services and more.”
In addition, the Second District found that imposing such a duty would be burdensome to the public:
“The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is the cost of insuring against liability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to the community may be considerable. [¶] Assuming for the purposes of argument that there is some risk to nonemployee persons, in a less than perfect world it appears to make more sense to look to the nonemployee person’s insurance to cover the risk. In the normal course of events, such insurance will be already in place and its cost is not likely to be influenced by the risk created by the employer’s conduct.”
The Second District concluded 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. While the overall policy of preventing future harm was ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible, the policy question is “‘whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.'” Hence, Ford owed no duty to Ms. Honer.
Why This Case Matters
Campbell is a landmark case for several reasons.
First, as noted above the case was the first published decision in California to address a take-home exposure claim for asbestos. Over the years, the number of take-home exposure cases for asbestos plaintiffs have increased, thereby subjecting businesses of various sizes to defend against such claims. Campbell, however, dealt a huge blow to these plaintiffs because it provided a general rule of law stating that there was no duty owed by the defendant to the plaintiff, no matter what the facts were. Consequently, the case would eliminate this growing class of plaintiffs alleging such exposure and in a variety of different factual circumstances.
In addition, this case may apply to other types of defendants. Although Campbell dealt with a premises defendant and its liability as a landowner, arguably the reasoning in the case may be applied to cases involving negligence against independent contractors because the analysis used to evaluate the liability of an independent contractor under a negligence theory is the same for a premises owner. Hence, independent contractors may also benefit from this decision, thereby eliminating another class of defendants.
Because of the huge consequences for plaintiffs as a result of this case, we anticipate that the plaintiffs in Campbell will seek appellate review to the California Supreme Court. We will monitor this case closely to determine where it ends up.