Calif. appeals court rules for railway company in secondary asbestos exposure case

By Heather Isringhausen Gvillo | Jul 3, 2014

LOS ANGELES (Legal Newsline) - A California appeals court recently held that a railway company did not owe a duty of care to a construction worker's wife who allegedly suffered secondary asbestos exposure because it could not be held responsible for premises liability claims based on the Campbell decision.

Judge Sandy Kriegler of California's Court of Appeal for the Second Appellate District delivered the June 3 opinion affirming the trial court's reliance on the Campbell decision when sustaining a demurrer in a wrongful death action based on premises liability. Judge Paul Turner concurred.

"We conclude that [defendant BNSF Railway Company] owed no duty of care to [the decedent], and affirm the trial court's judgment," Kriegler wrote. "We further conclude that the trial court acted within its discretion in sustaining the demurrer without leave to amend, because absent a duty of care, there is no reasonably possibility that a defect can be cured by amendment."

Judge Michael Mink dissented, arguing it is the court's responsibility to hold businesses accountable for asbestos injuries rather than focusing on the societal implications extending the duty to care could have on asbestos litigation.

"Society does not benefit by allowing tortfeasors to avoid responsibility for their tortious conduct," he wrote, "particularly in cases such as the present one where the injury is a physical one and its cause undisputed."

Decedent Lynn Haver developed throat cancer and progressive lung disease as a result of secondary asbestos exposure from her former husband, Mike Haver, who was employed by the Santa Fe Railway (the predecessor to defendant BNSF Railway Company) in the 1970s.

Plaintiff Joshua Haver, who filed the case on behalf of the decedent, alleged Mike Haver brought asbestos home on his clothing, which was then transferred to the couple's home, exposing his wife.

The decedent was allegedly unaware of the asbestos hazards and risks to those working with and around asbestos-containing products, as well as those affected by secondary exposure.

The Havers further alleged that the defendant knew of the dangers associated with asbestos exposure, including secondary exposure to employees' families, but failed to warn its employees or create a safer work environment.

BNSF relied on the Campbell decision in support of its argument that it had no duty to warn the decedent as a matter of law for premises liability.

Judge Richard E. Rico of the Superior Court of Los Angeles County sustained the demurrer without leave to amend. As a result, the plaintiffs appealed the judgment.

In Campbell, a plaintiff filed a premises liability case against Ford Motor Company alleging she developed mesothelioma from secondary exposure while laundering her father's and brother's work clothing.

In the case, Ford was the property owner and hired a contractor to construct a plant in the 1940s. The contractor hired a subcontractor who also hired its own subcontractor.

A jury entered a verdict in favor of the plaintiff.

Ford appealed, arguing it owed no duty to the plaintiff because a property owner is not responsible for injuries caused by actions or omissions of independent contractors unless the property owner had control over the work allegedly causing the injury.

The appeals court concluded that "even assuming a property owner can reasonably be expected to foresee the risk of latent disease to a worker's family members secondarily exposed to asbestos used on its premises, we must conclude strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure."

However, the plaintiffs in this case argued that the trial court erred when sustaining the demurrer in reliance on Campbell.

The Havers attempted to distinguish their case from Campbell, claiming Mike Haver was a direct employee of the railroad rather than an employee by a subcontractor "who was several levels removed from the premises owner."

Kriegler wrote that this assessment is incorrect.

"The Campbell court expressly states that the issue 'is 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,'" he stated.

He added that the term "workers" applies to those employed by the property owner as well as those employed by independent contractors.

After oral arguments in the case, the plaintiffs brought the recent Kesner decision to the court's attention, which Kriegler stated didn't change the court's analysis.

In Kesner, the court extended defendant Pneumo Abex's duty to warn to an employee's nephew who regularly spent time at his uncle's home. As a result, the nephew developed mesothelioma.

However, Kriegler explained that Kesner was not a premises liability case. Instead, the complaint alleged negligence in Abex's manufacture of asbestos-containing brake linings.

"Kesner expressly does not question the holding in Campbell in the context of a premises liability cause of action," she concluded.

Mink, on the other hand, disagreed from the majority's decision.

"I believe respondent BNSF had a duty to protect decedent Lynn Haver from the effects of take-home exposure to asbestos, a substance which was allegedly used in the workplace of her former husband, a former BNSF employee," he wrote.

He explained that applying the Rowland factor, as discussed in the Kesner decision, would provide an alternate finding that BNSF did owe a duty of care to the decedent.

Minks also disagreed that the Campbell decision is distinguishable from the Kesner decision based on premises liability versus negligence claims.

"This attempt is unpersuasive," he wrote. "Whatever label is attached to the take-home exposure cases, they are all based on the alleged negligence of the employer."

Minks wrote that the Campbell decision advised against imposing duty of care for take-home asbestos exposure in order to avoid a flood of lawsuits clogging the courtrooms and driving companies out of business.

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

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