Heather Isringhausen Gvillo Jun. 6, 2014, 5:46pm

SAN FRANCISCO (Legal Newsline) - A California appeals court has held that a company's duty to warn of asbestos dangers extended to an employee's nephew who developed mesothelioma - despite all other defendants in the case being the nephew's own employers, where he was exposed to asbestos occupationally.

The trial court ruled that defendant Pneumo Abex owed no duty to the nephew, who alleges he was exposed to asbestos through contact with his uncle's work clothing.

Abex argued that "no duty is owed [by an employer] to family members of workers for take-home exposures."

However, the First Appellate District Court of Appeals disagreed, saying plaintiff Johnny Blaine Kesner, Jr., was a frequent visitor of his uncle's household, spending several nights a week in the home for several years.

Using factors from the Rowland decision, the appeals court reversed the trial court's ruling.

Judge Stuart Pollak delivered the opinion. Judges Peter Siggins and Martin Jenkins concurred.

At the onset of trial, Abex moved for a nonsuit, arguing it had no duty to prevent Kesner's asbestos exposure. The Superior court agreed, granting Abex's motion for nonsuit.

Kesner responded by filing an appeal. The appeals court expedited consideration of the issue due to Kesner's declining health.

According to the May 15 opinion, Kesner was diagnosed with perotineal mesothelioma in February 2011.

He filed an asbestos lawsuit against several defendants. However, every defendant except Abex consisted of companies Kesner worked for and was occupationally exposed to asbestos on their premises. All of those claims have been resolved. Only Abex remains.

Kesner claims his uncle was an Abex employee from 1973 to 2007 and was exposed to asbestos while on the job.

Between 1973 and 1979, Kesner was a frequent guest in his uncle's home, staying the night there several days a week.

Kesner claims his uncle would come home and, while still in his dusty work clothes, play with Kesner or sleep near him, which contributed to his development of mesothelioma.

Pollak wrote that this case involves the "asserted liability of a negligence manufacturer to a plaintiff for injuries arising as a result of the plaintiff's exposure to a harmful substance through contact with the manufacturer's employee away from the manufacturer's premises."

He added that individuals still have a duty to use ordinary care for their own safety and must use reasonable care in certain circumstances.

The appeals court used the Rowland decision to analyze this take-home asbestos case, saying a number of factors must be considered:

-The foreseeability of harm to the plaintiff;

-A 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 the prevalence of insurance for the risk involved.

Pollak noted that considering the Rowland factors as they relate to negligence claims does not lead to the conclusion that employers responsible for asbestos-exposures, failing to warn of asbestos dangers or failure to provide protective measures are not responsible to any nonemployee foreseeably affected by the asbestos exposure.

The appeals court made it clear that finding a duty to warn is not the same thing as a finding of negligence.

However, he added that contrary to its stance on negligence claims, the Rowland decision applies differently on duty-to-warn claims. The court found that the first three Rowland factors relate to and support extension of an employer's duty to warn beyond its employees.

"As a general matter, harm to others resulting from secondary exposure to asbestos dust is not unpredictable," Pollak wrote. "The harm to third parties that can arise from a lack of precautions to control friable asbestos that may accumulate on employees' work clothing is generally foreseeable."

The fourth Rowland factor, relating to moral blame, also typically supports extension of an employer's duty to warn, he added.

"Assuming, as we must, the truth of Kesner's allegation that Abex was aware of the risks to those exposed directly or indirectly to the asbestos dust generated in its facility and took no steps to avoid those risks, certainly such indifference would be morally blameworthy," he wrote.

The Rowland decision also addresses prevention of future harm for other potential asbestos victims.

The appeals court notes that holding an employer responsible for avoiding injuries to employees' families who may foreseeably be harmed by take-home asbestos exposures can help prevent harm to others in the future.

The next Rowland factor - the extent of the burden to the defendant and the consequences to the community if the court imposes too broad a duty - has led the court to limit the reach of liability in the past. The appeals court recognizes that stretching liability too far can become unreasonable and burdensome.

"It would be an entirely unreasonably burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends," the opinion states.

As a result, the courts determined a limit was needed on whom the duty of reasonably care extends. Because Kesner spent so much time near his uncle, the court held that it was reasonable to extend duty to the plaintiff.

As for the last Rowland factor, previous courts held that the threat of unlimited liability "could restrict the ability of employees to obtain insurance, while individuals may obtain insurance covering medical expenses incurred as a result of illness arising from toxic exposure."

However, the appeals court made it clear that there is no reason to believe that manufacturers cannot obtain insurance coverage to protect against their duty to warn liability.

Analyzing each of the Rowland factors, the appeals court concluded that Abex still held duty-to-warn liability, noting that foreseeability of harm is the most significant factor to consider.

He added that there is a high level of foreseeability of harm from take-home asbestos exposure, especially when Kesner's contact with his uncle's dusty work clothing was not incidental.

The weight of the foreseeability factor is strengthened, Pollak explained, when the moral blame factor is also attributable to Abex allegedly disregarding a known risk to others and the need to prevent future harm.

"In weighing these competing considerations, the balance falls far short of terminating liability at the door of the employer's premises," Pollak wrote.

Pollak explained that extending Abex's duty of care to Kesner does not threaten employers with potential liability for "intangible injuries" that could be alleged by an unlimited number of claimants, because mesothelioma claims cannot be claimed by everyone.

Pollak stated that the court reached its conclusion that Abex's duty of care extended to Kesner on the assumption that Kesner was a long-term guest in his uncle's home and had extensive contact with his uncle's dusty work clothing.

However, the appeals court said it makes no opinion for cases other than the one on hand, as there are factual questions needed for future determination

"As to such persons, the foreseeability of harm is substantial. As to persons whose contact with an employer's worker is only casual or incidental, the foreseeability of harm and the closeness of the connection between the defendant's conduct and the plaintiff's injury may be so minimal as to produce a different balance of the Rowland factors," he wrote. "We hold that there is a duty under the circumstances alleged in the present case, but we do not address other circumstances that are not before us."

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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