Heather Isringhausen Gvillo Dec. 3, 2014, 9:23am

LOS ANGELES (Legal Newsline) – A California appeals court has concluded that a premises owner did not owe a duty to an employee’s family to warn of asbestos hazards in a case alleging take-home exposure.

Judge Richard Dennis Aldrich delivered the Nov. 21 opinion for the majority in California’s Court of Appeal for the Second Appellate District, affirming the lower court’s judgment. Judge Patti S. Kitching concurred.

The appeals court reached its decision based on the Campbell decision, concluding that 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. Accordingly, we affirm the trial court’s grant of summary judgment,” Aldrich added.

Judge Joan D. Klein dissented, arguing that the Rowland factors establish a duty of care for premises owners.

“Given the high degree of foreseeability of harm to family members or members of the household, persons whose contact with an employer’s workers is not merely incidental – compounded by the moral blame attributable to disregarding a known risk to others and the important public policy of preventing future harm, a duty should lie in these circumstances,” she wrote.

Plaintiff Wanda L. Beckering appealed a judgment out of the Superior Court of Los Angeles County after the court granted summary judgment in favor of defendant Shell Oil Company in a premises liability asbestos action.

Beckering alleged she developed mesothelioma from asbestos exposure while laundering her late husband’s clothing. Her husband, Frank, worked at Shell’s Wilmington and Dominguez facilities as a machinist from 1954 until 1992. He died in 2009 from causes not specified in the appeal.

Shell filed for summary judgment on Jan. 10, alleging it owed no duty of care to the claimant. The trial court granted Shell’s motion for summary judgment on March 10. Beckering appealed.

In her appeal, Beckering claimed the defendant owed a duty of care to family members in order to prevent secondary asbestos exposure according to California law. She also believed the Rowland factors weigh in favor of finding a duty of care by the defendant. Additionally, she argued Campbell, which limits the duty of premises owners only with regard to family members of independent contractors on their premises, must be limited to those facts and circumstances.

Aldrich wrote that a landowner owes a duty to exercise reasonable care to maintain the property to avoid exposing others to an “unreasonably” risk of injury.

However, the Campbell decision holds that a premises owner owes no duty to protect family members of employees from secondary asbestos exposure.

In Campbell, the plaintiff filed a premises liability action against Ford Motor Company, alleging she contracted mesothelioma as a result of secondary asbestos exposure from laundering her father’s and brother’s work clothing. The trial court entered a judgment in favor of the plaintiff, but the appeal court reversed the decision after concluding the premises owner did not owe a duty.

Aldrich stated that Beckering’s attempts to avoid the impact of the Campbell decision in this case are “unavailing” and “unpersuasive,” because there is no merit to her argument that Campbell applies exclusively to family members of independent contractors.

Rejecting the claimant’s “narrow” reading of the Campbell opinion, Aldrich pointed to a footnote in Campbell where the court addressed the independent contractor status of a plaintiff’s family members, stating “our analysis does not turn on this distinction.”

“We conclude Campbell was correctly decided and is controlling,” Aldrich wrote. “Because Shell did not owe Beckering a duty, the grant of summary judgment was proper.”

In Klein’s dissent, she argued that summary judgment should be reversed and disagreed with the majority’s application of the Rowland factors in the case.

“In my view, the Rowland factors clearly militate against terminating liability at the door of the employer’s premises,” she wrote.

Klein explained that the general rule in California is that all entities have a duty of care and is liable for injuries caused by failure to exercise that duty.

Addressing each of the Rowland factors, Klein argued that it was foreseeable that a family member could suffer from take-home asbestos exposure. Asbestos was a known toxin since the 1930s, and it was “well established” that asbestos fibers could be carried home on a worker’s clothing, Klein wrote.

Klein also claimed there was a degree of certainty that Beckering suffered an asbestos-related injury after she was diagnosed with mesothelioma.

There appears to be a close connection between Shell’s conduct and the asbestos-related injury, Klein stated in relation to the third Rowland factor.

As for the fourth factor, or moral blame attached to the defendant’s conduct, Klein argues it supports a duty of care owed to close family members of Shell’s employees.

“Assuming that Shell was aware of the risks to those exposed directly or indirectly to the asbestos fibers in its workplace and failed to take steps to avoid those risks, such indifference would be morally blameworthy, Klein wrote. "What Shell actually knew and the sufficiency of steps it may have taken to prevent harmful exposure go to the question of whether Shell in fact breached its duty."

In regards to the Rowland factor addressing a defendant’s policy of preventing future harm, Klein wrote that “it is self-evident a rule of law that holds an employer responsible for avoiding injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its industrial process can be expected to prevent harm to others in the future.”

She also claims the burden was on Shell to provide warnings, implement dust control and educate its employees of the hazards associated with asbestos exposure.

As for the last Rowland factor, which addresses the availability of insurance, Klein asserts that “there is no reason to believe that industry cannot obtain insurance coverage to protect against liability to nonemployees for exposure to asbestos.”

Therefore, Klein argues that the lower court’s judgment should be reversed with directions to reinstate Beckering’s third cause of action for negligence arising out of premises liability against Shell.

“In sum, weighing the pertinent considerations, the balance falls far short of terminating liability at the door of Shell’s premises for secondary exposure to asbestos,” she stated.

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

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