California Court Extends Duty to Warn in “Take Home” Asbestos Case

Earlier this year, the California First Appellate District Court of Appeals widened the net of potential plaintiffs beyond spouses in “take home” asbestos cases. The plaintiff,  diagnosed with mesothelioma,  sued multiple defendants including companies where he had occupational exposure to asbestos, as well as a company at which his uncle worked. In naming this latter defendant, the plaintiff claimed that he was exposed to asbestos through his uncle’s work clothes.

Typical take home asbestos exposure cases usually involve a spouse (most often a wife) that launders the asbestos dust-containing work clothes of the other spouse (again, most often the husband) over many years. Here, the trial court rejected the plaintiff’s claim against his uncle’s employer, ruling that that employer owed no duty to the plaintiff.

In overturning that ruling, the Court of Appeals relied on the fact that the plaintiff had spent numerous nights each week at his uncle’s house between 1973 and 1979, as well as evidence that the uncle would come home from work and play with the plaintiff or rest close to him while in his work clothes.

In reaching its decision, the Court of Appeals applied the factors set forth by the California Supreme Court in Rowland v. Christian, 69 Cal.2d 108 (1968).  Rowland looked at the duty of care that is owed by a landowner to the people on the land, and set forth factors to be considered in assessing the scope of such a duty: 1) the foreseeability of damage to the plaintiff; 2) a degree of certainty that the plaintiff suffered injuries; 3) the nearness of the connection between the defendants’ conduct and the injuries suffered; 4) the moral blame connected to defendants’ conduct; 5) a plan of preventing future harm; 6) the extent of the burden to the defendant and consequences to the community of imposing a duty of care for the resulting liability breach; and 6) availability, cost and prevalence of insurance for the associated risk.  Weighing these factors, the Court of Appeals found that the uncle’s employer had liability for failing to warn.

It is no secret that the asbestos plaintiffs’ bar is seeking continually to expand the scope of asbestos tort liability and the pool of target defendants, and this decision from California will likely aid in those efforts. While the facts of each take-home exposure case, specifically the time spent in the exposed home and the frequency of contact with the dirty work clothes, will continue to be the critical areas of concern for courts tasked with assessing foreseeability of injury to each such plaintiff, we expect to see a continuing trend of plaintiffs pushing to extend tort liability beyond the traditional spouse-based take-home exposure paradigm.

 

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