Manufacturer of Asbestos-Containing Products May be Liable for “Take-Home” Exposure

Johnny Blaine Kesner, Jr. was diagnosed with peritoneal mesothelioma. He filed suit against a number of defendants, including Pneumo Abex, LLC (Abex), to recover damages for his injuries. Kesner’s claim against Abex was that Kesner’s uncle was an Abex employee who allegedly was exposed to harmful levels of asbestos in his job. Between 1973 and 1979 Kesner was a frequent guest in his uncle’s home, and often spent the night there. The uncle allegedly came home in his work clothes covered in asbestos dust. While he was still in his work clothes, Kesner’s uncle would often play with Kesner and sometimes sleep near him. Kesner alleges that his exposure to the asbestos dust on his uncle’s clothing contributed to his (Kesner’s) contracting mesothelioma. Cases commonly refer to this situation as a claim of “secondary”, “para-occupational”, or “take-home” exposure to a harmful substance.

The trial court granted a nonsuit in Abex’s favor. Relying on the decision in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 (Campbell), the trial court concluded that “Abex owed no legal duty to Kesner for any exposure to asbestos through contact with an employee of the Abex plant, . . . none of which exposures took place at or inside Abex’s plant.” Kesner appealed.

The Court of Appeal reversed, and held that Abex, as a manufacturer of a product owed a duty of care to Kesner, and that Kesner could proceed to trial to attempt to prove that his disease was caused by the take-home exposure to asbestos from his uncle. The Court of Appeal distinguished the Campbell case, pointing out that the claim against Ford Motor Company asserted in Campbell was based on Ford’s passive involvement as owner of the plant in which an independent contractor was installing asbestos insulation. The holding in Campbell was that a landowner (as opposed to a manufacturer) owes no duty of care to those coming into contact with persons whose clothing carries asbestos dust from the landowner’s premises. (See also Haver v. BNSF Ry. Co., B246527 , Second Appellate District, Division Five, 2014 Cal. App. LEXIS 488, filed June 3, 2014, where the Court of Appeal followed Campbell in holding that BNSF Railway as a landowner owed no duty to a worker’s spouse who allegedly contracted an asbestos disease through take-home exposure to the worker’s clothes.) Kesner’s claim against Abex, on the other hand, is a negligence claim against a manufacturer in the manufacture of asbestos-containing brake linings. The Court of Appeal seemed to focus on several reasons why it was imposing potential liability on manufacturers but not premises owners for take-home claims: a premises owner may be simply engaged in the passive activity of ownership of property; the imposition of a duty on a landowner to anybody who comes in contact with somebody who has been on the landowner’s property would create a potentially limitless pool of plaintiffs; and public policy is more supportive of imposition of a duty on an entity engaged in the manufacture of asbestos products which may have more available insurance to resolve the claim.

Following the Campbell decision in 2012, there was a glimmer hope in the business world, particularly the manufacturing and construction industries which are two of the major targets of asbestos claimants, that the court system was poised to “close the door’ on take-home exposure claims against defendants. The Kesner decision has probably dashed any hopes of manufacturers of asbestos products that they are insulated from take-home exposure claims. And, we very much doubt that the California Supreme Court will accept review of the Kesner decision and it will therefore become final.

So where does that leave us as to the law on take-home exposure claims? Premises owners are not responsible, at least as premises owners. Manufacturers are responsible. But what about the vast array of other potential defendants who are neither premises neither owners nor manufacturers? What about contractors whose employees worked around asbestos in the 1960’s to 1970’s? What about employers of such trades such as brake repair technicians and building engineers who worked around asbestos as employees? Are these employers going to be responsible to the wives and relatives of their employees from secondary take-home exposure to asbestos and other toxins? There is no definitive answer to this question presently. But if forced to make a prediction we think that the courts will ultimately find premises owners to be the exception to the broad rule that employers generally, as employers, are liable in California to third persons for take-home exposure to asbestos or other toxins.

The case is Kesner v. The Superior Court; 14 C.D.O.S. 5376 [filed May 15, 2014].

–Ralph R. Rhoades

For questions or more information about this topic, please contact Ralph Rhoades
email: rrhoades@partonsell.com

Johnny Blaine Kesner, Jr. was diagnosed with peritoneal mesothelioma. He filed suit against a number of defendants, including Pneumo Abex, LLC (Abex), to recover damages for his injuries. Kesner’s claim against Abex was that Kesner’s uncle was an Abex employee who allegedly was exposed to harmful levels of asbestos in his job. Between 1973 and […]