August 11, 2020

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August 10, 2020

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California Imposes Broad Liability in “Take-Home” Toxic Exposure Cases

The Supreme Court of California has overturned prior case law and imposed broad new liability on “employers and premises owners” in “take-home” toxic exposure cases. In a lengthy opinion issued in the consolidated Kesner v. Superior Court and Haver v. BNSF Railway Co. matters, the Court stated:

We hold 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. Where 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. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability.


The Court held that “an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, i.e., persons who live with the worker and are thus foreseeable in close and sustained contact with the worker over a significant period of time.”

However, the primary holding also extends to both “employers and premises owners.” This language is not limited to specific types of facilities or industries, such as plants where certain products were manufactured, in contrast to locations where toxic substances were merely incidentally on-site. The Court added: “We have never held that the physical or spatial boundaries of a property define the scope of a landowner’s liability.”

Neither is the case limited to “employees.” The duty extends to “on-site workers” apparently irrespective of their employment status. It would not appear that this language covers “visitors” or “guests” who may have been present but did not perform any “work.”

This ruling applies whether the underlying claim is for “negligence” or “premises liability.” “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” The Court did, however, expressly state that its opinion does not abrogate other existing defenses, including the distinction between a “landowner” and “possessor,” and the general superseding liability of an independent contractor.

Defendants in “take-home” cases may now anticipate that “no duty” defenses at the pleadings or summary judgment stages will be significantly more difficult to prevail upon. The analysis now turns on a fact-dependent “reasonable foreseeability” test, as opposed to the bright-line “no duty” rules permitted by prior cases.

© 2020 Wilson ElserNational Law Review, Volume VI, Number 357


About this Author

Nicolas P. Martin, Wilson Elser, Products Liability Lawyer, Toxic Tort Attorney

Nicolas Martin focuses his practice on product liability, toxic tort, premises liability, construction defect, and other complex and catastrophic litigation matters, including trials and civil appeals. He manages high-risk cases through all phases of litigation, including initial evaluation, discovery and dispositive motions, as well as pre-trial, trial and post-trial filings.

Prior to joining Wilson Elser, Nick served the Supreme Court of California as a judicial clerk for Associate Justice Marvin R. Baxter. He also clerked for the California...