This past June, a decision was reached in Joshua Haver et al. v. BNSF Railway Co (2014) 226 Cal.App.4th 1104, where a California Court of Appeal for the Second District held that a landowner has no duty of care to a third party who experienced asbestos exposure through a person who worked on the landowner’s premises.
The case involved the deceased wife of former employee to a railway who had been exposed to asbestos as a result of the railway’s operations. Lynn Haver was wife of Mike Haver, a long-time employee of Santa Fe Railway. Mike Haver had been employed in the 1970’s by the railway, which is a predecessor of defendant BNSF Railway Company. Lynn Haver was repeatedly exposed to asbestos, which was allegedly “as a result of her direct and indirect contact with Mike [Haver], his clothing, tools, vehicles, and general surroundings.”
In Haver et al. v. BNSF Railway Co, the only cause of action is for premises liability. Premises liability is a legal theory which holds that the owner of a premises is responsible for a duty of care towards their guests, which includes providing the highest level of safety possible while the guests are on their property.
Preceding Haver et al. v BNSF Railway Co., the First District Court of Appeal make a ruling in Johnny Blaine Kesner Jr. v. Superior Court of Alameda County (2014) 226 Cal.App.4th 251. Similar to Haver, the plaintiff was a third party with exposure to asbestos through contact with an employee of the defendant. In this case, the appeals court ruled that the employer did owe a duty of care to the third party for exposure to asbestos, where the foreseeability of harm was substantial.
This ruling overturned the trial court’s granting of a non-suit which was based on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15. In the Campbell case, the claims were based on premises liability, while the Kesner case claims involved negligence and products liability.
In the cases discussed, it is worth noting that the Kesner case did not allege premises liability, but negligence due to the “manufacture of brake linings that contained asbestos.” The Court of Appeal distinguished Kesner, claiming that the “no duty” holding is not limited to the situation, contrary to the plaintiff’s argument, because in Campbell the worker is employed by a subcontractor rather than being directly employed by the premises owner. It is also notable that the manufacture occurred on the defendant’s premises where the worker brought home the alleged asbestos contamination.
In Haver, the court noted that took into consideration the “attenuated” relationship between the owner of the premises and the worker who had been hired by the subcontractor of another subcontractor,Campbell additionally emphasized that its “analysis did not turn on this distinction.”
The courts conclude that the Campbell “no duty rule” only applies to cases where the claims against to the defendant are based on premises liability.