In Kesner v. Superior Court (consolidated with Haver v. BNSF Railway Company), the Supreme Court today holds that employers and landowners 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’s unanimous opinion by Justice Goodwin Liu concludes that “[w]here it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” [Disclosure: Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC in the Kesner case.]
Just two weeks ago, when the court recognized a tort duty to third parties — in that case, a duty owed by HMO’s to emergency healthcare providers — it called such a duty “exceptional.” In Kesner, however, the court views the duty as the general rule, not the exception. The court says it is not “determin[ing] ‘whether a new duty should be created, but whether an exception to [the general rule of duty] . . . should be created.'”
The court reverses the Second District, Division Five, and it vacates the opinion of the First District, Division Three, and remands for further consideration, but essentially agrees with that court’s decision. The court also disapproves a 2012 decision by the Second District, Division Seven, and a 2009 opinion by the Second District, Division Eight.