LOS ANGELES (Legal Newsline) - See’s Candies can be sued over the death of a man whose wife claims she caught COVID-19 at the candy factory, a California appeals court ruled, rejecting arguments the case should be blocked under the state workers’ compensation law.
Matilde Ek and her three daughters sued See’s, a unit of Warren Buffett’s Berkshire Hathaway Inc., after the April 2020 death of her husband Arturo from COVID-19. Ek claimed she caught the disease sometime the previous month and transmitted it to her husband while she was at home convalescing with the help of one of her daughters.
See’s sought a demurrer under the “derivative injury doctrine,” which generally prevents lawsuits by third parties over injuries covered by the state Workers’ Compensation Act. The manufacturer said Ek’s claim she caught COVID-19 at work meant her husband’s death necessarily was a result of her workplace injury.
See’s drew support from industry groups, which said any other result would generate unchecked liability for employers as long chains of people infected with COVID blamed their disease on a person who was exposed at work.
The trial court rejected those arguments, as did the Second District Court of Appeal in a Dec. 21 decision. The appeals court relied heavily upon Snyder v. Michael’s Stores, a 1997 decision allowing a worker to sue the retailer over injuries to her unborn daughter she claimed were caused by exposure to carbon monoxide from a propane-powered floor buffer at work.
The Snyder decision suggested the derivative injury rule applies when an injury “simply would not have existed in the absence of injury to the employee” and went on to say the rule applies when “the plaintiff, in order to state a cause of action, must allege injury to another person – the employee.” See’s argued that if Ek’s claim of catching COVID at work was true – something the appeals court noted Ek still must prove at trial -- then her husband couldn’t have gotten sick without her own injury.
“Mrs. Ek did not have to become ill herself for Plaintiffs’ injury to occur,” the court ruled.
The court cited other decisions holding employers liable for “take-home” asbestos exposure from a worker’s clothes and Snyder, over a mother’s exposure to carbon monoxide.
See’s said that was because the mother didn’t have to suffer any injury for the fumes to harm her unborn child. The appeals court disagreed with that analysis, saying the Snyder decision went on to say neither the workers compensation statute nor case law suggested third parties who are injured by a company’s negligence “logically and legally independent of any employee’s injuries” have lost their right to sue.
“We question defendant’s premise that Mr. Ek’s injury necessarily was caused by an injury to Mrs. Ek,” the court said, since asymptomatic patients can spread COVID.
“There is little difference conceptually between a mother breathing in a poisonous gas and conveying it to her unborn child, and a wife breathing in viral particles that she then conveys to family members,” the court ruled. “In both cases, the employee is merely the conduit of a toxin or pathogen; whether the employee herself was harmed by the toxin or pathogen is not relevant to the claims of the injured family members.”
To rule otherwise would lead to “anomalous outcomes,” the court said, such as barring lawsuits by bus passengers who were infected by a lab worker who caught a dangerous disease because of his employer’s lax safety protocols. As for the potential chain of litigation that could stem from a single employee’s workplace exposure to COVID, the appeals court said that was a question for the legislature, not the courts.