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From Products Liability Law Daily, June 4, 2014

Railroad not liable for take-home asbestos exposure in premises liability action

By Pamela C. Maloney, J.D.

A railroad that employed the husband of a woman who died of mesothelioma as a result of secondary exposure to asbestos from her husband’s work clothes was not liable in a wrongful death action based on premises liability, a California appellate court ruled, distinguishing prior holdings by California appellate courts on the issue of take-home liability (Haver v. BNSF Railway Co., June 3, 2014, Mink, M.).

Background. Lynn Haver (Lynn) contracted mesothelioma, allegedly as a result of her secondary exposure to asbestos. Haver’s former husband, Mike Haver (Mike), was employed by the Santa Fe Railway, the predecessor to defendant BNSF Railway Company, in the 1970s. Mike had been exposed to products and equipment containing asbestos on BNSF’s premises on numerous occasions during the course of his employment. The asbestos adhered to his clothing and was transferred to the couple’s home. According to the complaint, Lynn inhaled asbestos fibers as a result of her direct and indirect contact with Mike, his clothing, tools, vehicles, and general surroundings. As a proximate result of her exposure to asbestos, Lynn suffered severe and permanent injuries including throat cancer and progressive lung disease, from which she died. The wrongful death action brought by Lynn’s survivors was dismissed without leave to amend, finding that in an action based on premises liability, the railroad had no duty to warn Lynn as a matter of law.

Prior rulings. The survivors sought to distinguish the facts in this case from that in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, arguing that Mike had been a direct employee of the railroad, unlike the situation in Campbell, in which the employees exposed to asbestos did not work for the property owner, but instead were employed by a subcontractor who was several levels removed from the premises owner. Thus, they posited, Campbell was limited to a plaintiff who was the relative of workers employed by an independent contractor, where those workers were not controlled by the property owner. In the alternative, the survivors claimed that Campbell had been incorrectly decided.

The survivors also contended that Kesner v. Superior Court (May 15, 2014, No. A136378) __ Cal.App.4th __, a case decided after oral argument in this appeal, compelled a finding of error.

Take-home liability in premises liability action. In rejecting the survivors’ attempt to distinguish Campbell, the court stated that the issue in that case was “whether a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.” In finding no liability on the part of the premises owner, the Campbell court made it clear that its analysis did not turn on the distinction between workers employed by the property owner and those employed by independent contractors to work on the premises of the owner.

The court went on to review the decisions of other courts that have considered this issue and determined that Campbell had been decided correctly.

Similarly, the court rejected the argument that the recent Kesner decision required a different result. The Kesner court concluded that manufacturers of products containing toxins had a duty of care to persons who have extensive contact with employees exposed to those toxins, and who suffer secondary exposure and injury as a consequence. However, Kesner expressly did not question the holding in Campbell in the context of a premises liability cause of action.

The case number is B246527.

Attorneys: Paul C. Cook (Waters Kraus & Paul) for Joshua Haver. Selim Mounedji (Sims Law Firm) for BNSF Railway Co.

Companies: BNSF Railway Co.

MainStory: TopStory CourtDecisions SCLIssuesNews AsbestosNews CaliforniaNews

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