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Kesner v. Superior Court: The Aftermath

Posted in Asbestos Litigation, California Courts, Premises Liability

Asbestos(Cropped)On Friday, June 2, 2017, the California Court of Appeal for the Second District, issued an unpublished opinion holding that Shell Oil Company owed a duty to protect from asbestos exposure the wife of a former machinist who worked at Shell facilities from approximately 1954 to 1992. Beckering v. Shell Oil Company (Cal. Ct. App., June 2, 2017, No. B256407), “Beckering II”). In this recent opinion, the Court of Appeal reversed its own earlier ruling from 2014 which initially held that a premises owner has no duty to protect a family member from secondary exposure to asbestos off the premises (Beckering v. Shell Oil Company (Cal. Ct. App., Nov. 21, 2014, No. B256407), “Beckering I”).

Beckering II, the latest appellate decision regarding the scope of duty owed in secondary asbestos exposure or “take home” cases, is the result of the trickledown effect of the California Supreme Court’s December 2016 decision Kesner v. Superior Court (2016) 1 Cal.5th 1132.

 

Kesner v. Superior Court

In Kesner, the California Supreme Court examined whether employers and landowners owe a duty of care to prevent secondary exposure to asbestos and held that “the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.” Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140. In so holding, the Court found it was “reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members [and that, therefore] employers have a duty to take reasonable care to prevent this means of transmission.” Id. Notably, “[t]his duty also applies to premises owners who use asbestos on their property” regardless of whether the premises owner is the vector’s employer, although the Court recognized that premises liability includes a number of affirmative defenses and exceptions which may be applicable depending on the facts of the case. See Id., at 1140, 1160.

To arrive at this conclusion, the Supreme Court examined and applied the well-established “Rowland factors” which, when balanced together, can justify a departure from the general rule of ordinary care: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) 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; (7) and the availability, cost, and prevalence of insurance for the risk involved. Kesner, 1 Cal.5th at 1145; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771; Rowland v. Christian (1968) 69 Cal.2d 105, 112; see also Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.

 

In finding that “[t]he most important [Rowland] factor” is whether the injury in question was foreseeable (although not wholly determinative), the Supreme Court concluded that “proper application of the Rowland factors supports the conclusion that defendants had a duty of ordinary care to prevent take-home asbestos exposure. Such exposure and its resulting harms to human health were reasonably foreseeable to large-scale users of asbestos by the 1970s, and the OSHA Standard affirmed the commonsense reality that asbestos fibers could be carried on the person or clothing of employees to their homes and could be inhaled there by household members.” Kesner, 1 Cal.5th at 1145, 1156. Notably, the Court attempted to put some boundaries on its holding limiting the class of potential plaintiffs solely to members of a worker’s household. Id., at 1140.

 

It is with the Kesner framework that the California Court of Appeals reversed its prior decision in Beckering I.

 

Beckering I and II

 

In Beckering, a former Shell Oil Company’s employee’s[1] wife brought a lawsuit against Shell alleging she laundered her husband’s work clothes for 38 years and developed mesothelioma as a result. Against Shell, Plaintiff brought a cause of action for negligence arising out of premises liability. Shell filed a motion for summary judgment in January 2014 arguing that Plaintiff’s premises liability claim was barred as a matter of law because, under the then-current legal test (as this was prior to Kesner), a property owner had no duty to protect family members of workers from secondary or off-site exposure to asbestos carried home on the worker’s clothing even it was foreseeable. See Beckering I, at 3.

 

Although the Court of Appeal originally affirmed the trial court’s ruling granting summary judgment in favor of Shell, in Beckering II the Court applied Kesner and reversed and remanded the case. See Beckering II, at 10.

 

In a footnote, Beckering II cited Kesner and cautioned: “It must be remembered that a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must [still] prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff’s injury, and the defendant may assert defenses and submit contrary evidence on each of these elements.” Beckering II, at n.2 (quoting Kesner, 1 Cal.5th at 1157).

 

Despite the self-proclaimed limits both Kesner and Beckering II have attempted to define as integral components to their holdings, it appears that dispositive motions premised upon the legal issue of an employer’s or premises owner’s absence of duty in California are, and will be for the foreseeable future, futile.  Although unpublished, Beckering II will undoubtedly guide the lower courts on the application of Kesner going forward.

 

 

[1] The Court of Appeals’ opinion is not clear as to whether Decedent was actually employed by Shell; however, Plaintiff’s opening appellate brief indicates that Shell did employ Decedent during the putative time frame. Wanda L. Beckering, Plaintiff and Appellant, v. Shell Oil Company, Defendant and Respondent (Aug. 6, 2014) WL 4254334 (Cal.App. 2 Dist.), at *3.