In Campbell v. Ford Motor Company (2012 Cal.App. Lexis 593), the California Court of Appeal (Second Appellate District, Division 7) on May 21, 2012 held 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. The Court based its ruling squarely on public policy grounds, stating that there were too many undesirable consequences to allow this expansion of potential liability.
The Campbell case involved a 76-year old woman (Eileen Honer) who was diagnosed with mesothelioma in 2004. She sued Ford alleging that as a young teenager until the age of 18 she lived at home and washed the work clothes of her father and brother, both of whom were employed as asbestos insulators for contractors or subcontractors who did work at the Ford plant in Metuchen, New Jersey. She had to shake out and wash their clothes at the end of the work day which she described as “dirty” and “dusty” and “nasty.”
Her suit against Ford alleged negligent use or maintenance of the premises in failing to keep the property in a safe condition. In a special verdict for plaintiff, the jury found Ford 5 percent responsible. It also allocated 60 percent to her father’s employer, 20 percent to other general or subcontractor insulators who employed her father or brother and 15 percent to the insulation manufacturer. Ford appealed.
The Court addressed the issue of whether Ford owed Honer a duty of care. “The issue before us is whether an employer has a duty to protect family members of employees from secondary exposure to asbestos used or in the course of the employer’s business.” Campbell at p. 7. The Court then examined the factors enumerated in Rowland v. Christian (1968) 60 Cal.2d 108 and concluded Ford owed no such duty.
The Court focused first on the fact that Honer had never set foot on the Ford premises, but pointed out that the purpose of a plaintiff’s presence on the property must be considered along with other factors because Rowland holds that the legal duty of care is owed to the class of persons who it is reasonably foreseeable may be injured by the actor’s (Ford’s) conduct.
Citing the case of Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, the Court then dealt with the issue of foreseeability and pointed out that the foreseeability of the risk alone is not enough to create a duty, but rather must be balanced with “policy considerations for and against imposition of liability,” citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.
After concluding there was no “high degree of moral culpability” (another Rowland factor), the Court then considered two additional 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” and stated that these two factors weigh heavily against Honer in the instant case. The Court cited the case of Oddone v. Superior Court (179 Cal.App.4th 813, 822) and stated: The Court pointed out that foreseeability and extent of the burden to the defendant have become the primary Rowland factors which should be taken into consideration on a question of legal duty.
Like the Taylor v. Elliott Machinery case before it, the holding in the Campbell case appears to be based, on the unfairness of the burden to the defendant by exposing it to uncertain but potentially very large liability. It would appear that when faced with a “take home” asbestos case in the future, it would be essential for a defendant to emphasize that the injured person had no contact with the subject property or premises. The fact that the injured party here had never set foot on the premises, not even as a lunchtime visitor or other invitee to the property, seemed to put her in that large, amorphous class of people for whom it was just too remote and tenuous a connection to hold a defendant liable.
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