In Kuciemba v. Victory Woodworks, the Supreme Court today holds that employers currently can’t be sued for failing to prevent the spread of COVID-19 to employees’ household members. Allowing liability “would impose an intolerable burden on employers and society in contravention of public policy,” the court says. In other words, there’s no legal exposure for employee family member virus exposure.
Responding to questions asked by the Ninth Circuit about California law, the court’s unanimous opinion by Justice Carol Corrigan precludes an action alleging a construction worker’s wife contracted COVID from her husband due to his employer’s failure to abide by government health orders at the beginning of the pandemic.
The defendant prevails despite the court rejecting a number of arguments for defeating plaintiffs’ claim, including the court’s finding it doesn’t matter that there’s no special relationship between the employer and the employee’s wife.
The court also holds that California’s worker’s compensation statutes don’t bar the action. Engaging in what it called the “nuanced” and sometimes “challenging” analysis required when a non-employee is suing an employer, the Supreme Court concludes the exclusivity of workers’ compensation benefits didn’t prevent the claim because the wife’s illness was not “ ‘collateral to or derivative of’ the employee’s workplace injury.” “[E]xclusivity provisions bar a third party claim only when proof of an employee’s injury is required as an element of the cause of action,” the court says.
Winning on the special relationship and workers’ compensation issues isn’t enough to get the plaintiffs to trial, however. They lose because the court finds public policy reasons override factors that otherwise would establish a duty of care for employers. “[I]f a precedent for duty is set in regard to COVID-19, the anticipated costs of prevention, and liability, might cause some essential service providers to shut down if a new pandemic hits,” the court says.
The court distinguishes its decision in Kesner v. Superior Court (2016) 1 Cal.5th 1132, which held that employers owe a duty of care to workers’ household members who are exposed to asbestos when the workers carry the asbestos home on their person or clothing. The court says that, in Kesner, there was “a relatively small pool of defendants: companies that used asbestos in the workplace” and “a much smaller pool of potential plaintiffs: household members who were exposed to asbestos from an employee’s clothing and then went on to develop mesothelioma,” while in today’s case, “a duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant.” The court is also concerned that “the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community.”
The opinion does, however, leave unaddressed some issues that could change the bottom line. It doesn’t decide whether “a local measure enacted on an emergency basis could appropriately impose a tort duty extending to employees’ household members” and it says that “social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic,” that “these changes are likely to continue,” and that “the calculus might well be different in the future.”
On the workers’ compensation issue, the court disapproves the First District, Division One, Court of Appeal opinion in Salin v. Pacific Gas & Electric Co. (1982) 136 Cal.App.3d 185, and it praises both the Second District, Division One, decision in See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66, which it declined to review (see here), and the federal district court opinion in Estate of de Ruiz v. ConAgra Foods Packaged Foods, LLC (E.D. Wis. 2022) 601 F.Supp.3d 368.