KESNER v. S.C. (PNEUMO ABEX)

Real Party in Interest, Pneumo Abex LLC, Petition for Review

Cal.June 25, 2014

: copy. IN THE SUPREME COURT OF CALIFORNIA JOHNNY BLAINE KESNER, Petitioner, VU. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ALAMEDA, JUN 25 2014 Respondent, se a. MeGuire Cler k PNEUMO ABEX, LLC, Real Party in Interest. AFTER A DECISION BY THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE CASE No. A136378 (CONSOLIDATED W/ A136416) PETITION FOR REVIEW HORVITZ & LEVY LLP BRYDON HUGO & PARKER *LISA PERROCHET(BaR No. 132858) EDWARDR. HUGO (BAR No. 124839) ROBERT H. WRIGHT(BAR No. 155489) *JAMES C. PARKER(BAR No. 106149) 15760 VENTURA BOULEVARD, 18TH FLOOR JEFFREY KAUFMAN(BAR No.48095) ENCINO, CALIFORNIA 91436-3000 135 MAIN STREET, 20TH FLOOR (818) 995-0800 - FAX: (818) 995-3157 SAN FRANCISCO, CALIFORNIA 94105 lperrochet@horvitzlevy.com (415) 808-0300 + FAX: (415) 808-0333 rwright@horvitzlevy.com ehugo@bhplaw.com jparker@bhplaw.com jkaufman@bhplaw.com ATTORNEYSFOR REAL PARTY IN INTEREST PNEUMO ABEX, LLC TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ceccccccecesscsssccecesssereeeeesenssens iil ISSUES PRESENTED 1.000...cececccccccceceesssecececceessnececeeceetnsesens 1 INTRODUCTION: WHY REVIEW SHOULD BE GRANTED...... 2 STATEMENTOF FACTS....0........ccccccccccccccescsssccescsesssnerscsenessceesns 6 STATEMENT OF THE CASE....0.....ccccccccccccscccccecccceecceseessnccesceeeees 8 A. The pleadings..............0.ccccccccscssccccceccceeeeeesssesseceeeeeenens 8 B. The court proceedings............ccccccccsseeseesseeeeeee csstessseees 9 LEGAL ARGUMENT...0....cece cccccsccsscssscesecssssssrececessecsceeeetenses 10 A. Kesner breaks new ground in holding that employers owe a duty of care to unknownthird persons who maycomeinto contact with asbestos toxins that employees carry away from the worksite on their clothing ................ccccceeeeseesseceeeeeeeees 10 B. Contrary to Kesner, several California appellate cases have held there is no duty for property owners or employers to people secondarily OXPOSEA 2.0.2... eee cecesccssssceceeessenseeeccccsseveesesscessesssssecececenss 12 1. Oddone v. Superior Court (2009)...........c0ee 12 2. Campbell v. Ford Motor Co. (2012) ................ 13 3. Elsheref v. Applied Materials, Inc. (2014)....... 18 A. Haver v. BNSF Railway Co. (2014).........00000... 19 C. Most foreign courts reject any duty in secondary EXPOSULE CASES 00.0... ceeeecccessccueecseecensceeceenecceesecuaeceucess 22 D. _Kesner’s legal analysis deepens the confusion and conflict among California courts regarding the scope of duties owedto plaintiffs who allege take- HOME CXPOSULES...........cceecscsessseesesscsceceesceceeseseeseneess 26 CONCLUSION.....ocece ccccessccccesscescsesessuvssscececeseessceecctettecessuaeeees 29 CERTIFICATE OF WORD COUNT..........cccceecccccccesecceeeeeeseeees 31 li TABLE OF AUTHORITIES Page(s) Cases Adams v. Owens-Illinois, Inc. (1998) 119 Md.App. 395 [705 A.2d 58]...eeeeeeeeeeees 22 Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 .......ccccccccccccccccccceccccceceseeeecessssnneeseeeenaaes 14 Boley v. Goodyear Tire & Rubber Co. (2010) 125 Ohio St.3d 510 [929 N.E.2d 448]...eee24 Cabral v. Ralphs Grocery Co. (2011) 51 Cal4th 764 ooo... cceccececccccccccccccscececcescceceeseesteececeeenss 28 Campbell v. Ford Motor Co. (2012) 206 CalApp.4th 15 oo... cceeeceeeeececeeeeseceeens passim Chaisson v. Avondale Industries, Inc. (La. 2007) 947 So.2d 171 occ ccccccccccceccccceeececceeessesensccerensnsaes 25 CSX Transp., Inc. v. Williams (2005) 278 Ga. 888 [608 S.E. 208] .0...ceeceeeeeeeeeeees 22 Doe v. Pharmacia & Upjohn Co., Inc. (2005) 388 Md. 407 [879 A.2d 1088] .......ceeeeeeeeeeeeeeees 22 Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451 oo.eee3, 18, 19, 21, 29 Haver v. BNSF Railway Co. (June 3, 2014, B246527) __Cal.App.4th __ [2014 WL 2466570] ......eeepassim In re Certified Question from Fourteenth Dist. Court of Appeals of Texas (2007) 479 Mich. 498 [740 N.W.2d 206] ........ceee 22, 24 Martin v. Cincinnati Gas and Elec. Co. (6th Cir. 2009) 561 F.3d 489 0...ceccccsccceessesseeecestecereseese 24 il Matter of New York City Asbestos Litig. (2005) 5 N.Y.3d 486 [840 N.E.2d 115]...eeeceeee cree 23 Nelson v. Aurora Equipment Co. (2009) 391 Ill.App.3d 1036 [909 N.E.2d 931]...22 Oddone v. Superior Court (2009) 179 Cal.App.4th 813 0.0... cccccccceeccesessseeeeees passim Olivo v. Owens-Illinois, Inc. (2006) 186 N.J. 394 [895 A.2d 1148] oooceceeeeeeeeee 25 O’Neil v. Crane Co. . (2012) 58 Cal4th 335weceeccccssseseccaeccccessecseccusueeseseess 19 Price v. E.I. DuPont de Nemours & Co. (Del. 2011) 26 A.38d 162, 170 ...ec oie cccceccccccccccccenccccceececseceseceecs 24 Riedel v. ICIAmericas Inc. (Del. 2009) 968 A.2d 17 woweeeccccnseteccneccccccsescecccaesseeevevecs 24 Rochon v. Saberhagen Holdings, Inc. (2007) 140 Wash.App. 1008 .0.....cececccccececesseeeececeeeesers 25 Rowland v. Christian (1968) 69 Cal.2d 108...eeececeecccceceeesees 12, 14, 18, 27, 28 Simpkins v. CSX Corp. (2010) 401 Ill.App.3d 1109 [929 N.E.2d 1257]......000eee 25 Simpkins v. CSX Transp., Inc. (2012) 358 Ill.Dec. 613 [965 N.E.2d 1092] .....eeeeeeeeee 25 Van Fossen v. MidAmerican Energy Co. (Iowa 2009) 777 N.W.2d 689.00... ccceccccesssecceseessssecsscreneeees 23 Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269 oo...ccccsssccssesssssseerteeeeeess 16 Zimko v. American Cyanamid (La. 2005) 905 So0.2d 465 000... cccecesesesesessssssecssseecsesesseaeees 25 lv Rules of Court Cal. Rules of Court, 8.500(b)(1) .........0:ccceeeeccssccccceececesseesceseeesenteesens 5 Miscellaneous 4 Cetrulo, Toxic Torts Litigation Guide (2013) § 33:6..........0..... 11 Landin et al., Lesson Learned from the Front Lines: A Trial Court Checklist for Promoting Order and Sound Policy in Asbestos Litigation (2008) 16 J.L. & Pol’y 589.000.0000... 10, 29 Levine, Clearing the Air: Ordinary Negligence in Take- Home Asbestos Exposure Litigation (2011) 86 Wash. L.Rev. 359 ....cccccccccccsssssssssssesccececesssscescssssnseeescassescesessssauaseeetseners 24 Note, Continuing War with Asbestos: The Stalemate Among State Courts on Liability for Take-Home Exposure (2014) 71 Wash. & Lee L.Rev. 707 .......ccccccccccccccsesssseesesetesseeesescseeees 11 IN THE SUPREME COURT OF CALIFORNIA JOHNNY BLAINE KESNER, Petitioner, Vv. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ALAMEDA, Respondent, PNEUMOABEX, LLC, Real Party in Interest. PETITION FOR REVIEW ISSUES PRESENTED 1. Does an employerowea dutyofcare to persons claiming injury from exposureto asbestossolely throughoff-site contact with employees who carry asbestosfibers on their work clothing,tools, vehicles or persons? 2. If an employer owes such a duty, is it limited to immediate family membersliving full-time in the home, or does a duty extend to visitors, guests, or others the employee may come into contact with? INTRODUCTION: WHY REVIEW SHOULD BE GRANTED This case presents a major issue of compelling interest, one that has now dividedthe courts of appeal: does an employer owe a duty to nonemployees secondarily exposed to toxins taken off premises on the persons, clothing, tools or vehicles of employees? Hundreds of “take-home” exposure cases have been filed in recent years in California, with the numberonly increasing. Litigants and lower courts need clear guidance regardingthe scopeofany duty in such cases. In Kesner v. Pneumo Abex LLC (Kesner), the First District held, for the first time in a California published opinion, that employers owe a duty in take-homecases,and that this duty exists in favor of anyone (friend, acquaintance, colleague or extended family member) who had “recurring and non-incidentalcontact with the employer's employee.” (Typed opn. 2.) The duty of care extended to plaintiff Johnny Blaine Kesner even though he never once visited defendant Pneumo Abex LLC’s plant, and was never a memberofan Abex employee’s household, but rather was at most a regular visitor to the homeof his uncle, one of Abex’s employees, wholived 40 miles from the plant. (Typed opn. 3 & fn. 2; see 4 AA 911, 913.) The extension of a duty of care to nonemployees cannot be reconciled with recently published opinions from different divisions of the Court of Appeal, which themselves take divergent views of the issue: Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 822- 823 (Oddone) held that an employer wasnot liable for take-home exposures, on public policy grounds (“imposing a duty toward nonemployeepersonssaddles the defendant employer with a burden of uncertain but potentially very large scope’). Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 34 (Campbell) held that “a property owner has no duty to protect family membersofworkers on its premises from secondary exposure to asbestos used during the course of the property owner’s business” (opinion modified by Court ofAppeal on denial ofrehearingto delete references to whether an employer would have such a duty). Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 453-454 (Elsheref), followed Campbell to find a lack of duty with respect to take-home exposures where a minor asserted a claim against his father’s former employerfor negligence, after the minor wasbornwithbirth defects alleged to have been caused by in utero exposures through his father’s contact with his mother. But the court held the minorcould assert a product liability claim because the court believed “duty” is not a concept that has any bearing in product cases. Just one month after Kesner found a broad duty to third parties was owed by an employerin a take-home situation, Haverv. BNSFRailway Co. (June 3, 2014, B246527)__ Cal.App.4th __ [2014 WL 2466570, at pp. *3-*4] (Haver) held, in a divided opinion, that “Campbell’s conclusion [finding no duty] is consistent with the majority view on the issue of premisesliability to third parties based onoff-site exposure to asbestos,” adding, “We conclude that BSNFowednodutyofcare to [the spouse of defendant’s employee].” As noted in Haver, the majority view in the United Statesis not to impose a duty on either premises owners or employers for take- home exposures. And, even as to those courts that have imposed such a duty, no published decision has ever involved a guest in the employee’s home. The foregoing line of recent opinions reflects no coherent unifying legal principle on the question of duty. If review is not granted in Kesner, not only will there remain a split among the courts of appeal, there will rise wave after wave of nonemployees suing employers for alleged exposures to asbestos. Under Kesner, anyone with “recurring and non-incidental” contact with an employee may assert a claim; “a long-term guest” in an employee’s home has a causeof action, but “persons whose contact with an employer’s workeris only casualor incidental” do not. (Typed opn. 2, 11.) Between those extremes lie any numberof claimants, the winnowingof whichis a task the First District was careful to “not address” but ratherleaveto the trial courts, and later the appellate courts, who no doubt will now feel the full brunt of the very type of claims that most jurisdictions have ruled inappropriate and potentially overwhelming. Therisk and harm to oursociety ofexcessive and uncontrolled litigation should not be underestimated. The fact that so many take-home cases for asbestos exposure alone have resulted in publishedopinionsin just two years speaks volumes. Kesner’s own Court of Appeal briefing in this case asserted that the issue was important becauseofthe “manyothercases based on similarfacts,” eethat asbestoslitigation “is prevalent,” and ‘take-home exposure’ cases constitute a significant portion of asbestoscivil suits.” (PWM 1, 18.) If Kesner stands, the door is open for any person with mesothelioma to seek redress from the employerof any friend or relative that the person regularly visited—even though the consensus among defense and plaintiffs’ experts alike is that mesothelioma can and does occur spontaneously in a significant numberof people without any occupational asbestos exposure, so anyclaimed link to minute take-home exposuresis tenuousat best. Vigorous and creative plaintiffs’ attorneys have been extending asbestos litigation in such fashion for decades now,andthereis no reason to think limits will ever be self-imposed. Moreover, there is no reason to think the Kesnerholdingwill be available only to mesothelioma victims. It will no doubt extend to plaintiffs claiming lung cancer and other diseases. The Kesner opinion itself noted that chemicals, fumes and toxins other than asbestos will be implicated by the ruling. (Typed opn. 9.) And not just California employers could be subject to the Kesner rule, but any employer anywhere hailed into a California court, such as Abex here, even if their plant or worksite sits in a jurisdiction where that employer legally has no duty, or a limited duty, for take-home exposures. The First District has immeasurably expanded the scope ofan employer’s duty, in direct conflict with prior California law and that of other jurisdictions. These issues more than satisfy the requirements of California Rules of Court, rule 8.500(b)(1)—“to secure uniformity of decision,” and “to settle an important question of law.” Respectfully, Abex requests that this Court accept review. STATEMENTOF FACTS In 1972, at age 10, Kesner and his mother moved to Romney, West Virginia, where Kesner’s aunt and uncle, Francis and George, lived. (4 AA 911-912.) As child, Kesnervisited his uncle George’s homeonce or twice a week, and as a teenagerthree or four times a week;after he joined the Navy in 1979, he wouldvisit on furloughs. (4 AA 1066, 1070-1071.) “[E]very once in a while” Kesner would sleep over. (4 AA 915.) His uncle was not always present. He would typically see his uncle in the mornings before heading out to school. They would occasionally hunt, ride motorcycles, play football and softball, roughhouse, take rides in George’s car, and have breakfast. (4 AA 914-915, 1071, 1073.) He rodein his uncle’s car once a week. (4AA 915.) He did not launder his uncle’s clothes. (4 AA 1069.) Beginning in 1973, George worked at Abex’s Winchester, Virginia plant. (4 AA 1058.) Kesner, however, was never employed by Abex and never once visited the Winchester plant, located over 40 miles from Romneyacrossthe state line. (4 AA 911, 913.) Kesner never worked with or around any Abex brake linings or other product madeatthat plant. The Winchester plant manufactured automotive brake linings, some of which incorporated chrysotile asbestos. (4 AA 932, 1058.) Beginning in the early to mid-1970’s, shortly after the advent of the Occupational Safety and Health Administration (OSHA) and following the increasing concerns about potential health hazards of asbestos, Abex placed caution labels concerning asbestos on the packagingof its brake lining products. (4 AA 932- 933, 937, 955-956.) Shortly after he began working at Abex, George came to understand that exposure to asbestos could be a health hazard. (4 AA 1075.) At some point in the 1970's, Abex provided George and all other Winchester employees a written booklet describing in detail the potential health hazards of asbestos. (Ibid.) George recalled his foreman at the time handing him the booklet but George refused to sign the signature flap acknowledgingreceipt. (Ibid.) Later, Abex again handedout the booklet but George again refused to sign a receipt acknowledgingit had been provided. (4 AA 1075-1076.) George nonetheless kept the booklet until he left Abex’s employment in 2007. (4 AA 1076.) George agreed the Winchesterplant had showersavailable for employeesto use; he also understood he could changeclothes before going home. (4 AA 1065, 1078.) Though herarely did change his clothes before going home, he always dusted himself off as best he could and upon arriving home he always removedhis shoes before entering the home. (4 AA 1065-1066.) His clothes would be“a little bit” dusty. (4 AA 1066.) George’s wife, Francis, laundered George’s work clothes. (4 AA 1069.) Abex regularly swept and dusted the plant using manual and automated equipment. (4 AA 1079-1080.) George was aware air samples were taken regularly, OSHAinspected the plant, and Abex was nevercited for any excessive dust violations. (4 AA 1080.) Abex maintainedan industrial hygienist department and conducted its own regular air samplings of the Winchester plant looking for any excessive levels of asbestos. (4 AA 1094-1095.) Dust levels were generally below those mandated by federal regulations and Abex took numerous dust suppression steps starting well before George’s employment began. (4 AA 1099.) Overall, George liked Abex and spent four decades working at the Winchester plant. (4 AA 1081.) In early 2011, Kesner was diagnosed with peritoneal mesothelioma. STATEMENT OF THE CASE A. The pleadings Kesnerfiled his complaint in 2011, against 19 defendants, including Abex. (5 AA 1218-1219, 1230.) Thelist of defendants included manufacturers of pumps, turbines, oil purifiers, generators, and other industrial and shipboard machinery or supplies, as well as a ship builder, suppliers of raw asbestosfiber, repair and decking contractors, and insulation suppliers and contractors. (5 AA 1218-1219.) The complaint asserted that Kesner himself handled or used the defendants’ asbestos-containing products, the products were defective, had not been tested or researched, defendants “knew or should have known that the asbestos dust would be generated and released from their asbestos-containing products duringthe regular and intended usesof such asbestos products,” and had not warned Kesner. (5 AA 1220-1225.) The complaint contained noallegations concerning Abex’s plant or secondary “take-home” exposures. Bythe timeof trial, Abex was the sole remaining defendant. (Typed opn. 3.) Kesner hadoriginally alleged three causesofaction: negligence, breach of warranties, andstrict liability. (5 AA 1215, 1220, 1226, 1227.) The latter two causes of action were summarily adjudicated in favorofAbex because Kesnerdid not claim, and had no evidenceof, any exposure to any productplaced in the stream of commerce by Abex. Kesner has not challenged the grant of summary adjudication, nor does he dispute that his only cause of action against Abexis the one that had evolvedby the timeoftrial to assert negligence based on a claim of take-home exposure from his uncle’s work at Abex. B. The court proceedings Shortly before trial was to commence, the Court of Appeal issued its opinion in Campbell, supra, 206 Cal.App.4th at page 34, holding that a duty of care did not extend from premises ownersto family members of workers. Whether Campbell precluded imposing a duty of care on Abex for take-home exposures cameto thetrial court in the form of a nonsuit motion. (6/27/12 RT 4-8.) On June 28, 2012, the trial court granted Abex’s motion, ruling that “Abex owed no duty to Kesner for any exposure to asbestos through contact with an employee of the Abex plant in Winchester, Virginia.” (5 AA 1269-1270.) A judgment on the nonsuit was entered. (5 AA 1273.) Kesnertimely filed a notice of appeal anda petition for writ of mandamus. (5 AA 1274-1280.) The Court of Appeal, Division Three, consolidated the appeal with the writ proceedings. On May 15, 2014, the Court of Appeal issued its opinion, reversing the judgment. LEGAL ARGUMENT A. Kesner breaks new groundin holding that employers owea duty of care to unknownthird persons who may comeinto contact with asbestos toxins that employees carry away from the worksite on their clothing. More than a dozen jurisdictions across the country have addressed whether employers and landowners owe a duty to persons secondarily exposed to asbestos or other toxins that were carried offpremises by employees. The courts in a majority ofthose jurisdictions have found no duty should be imposed for such take- homeor secondary exposures. (See Landinet al., Lesson Learned from the Front Lines: A Trial Court Checklist for Promoting Order and SoundPolicy in Asbestos Litigation (2008) 16 J.L. & Pol’y 589, 624-625.) The majority view includes employers or property owners, though most cases have involved employers. As noted in Haver, ““Under the emerging majority view, the court dismisses the suit, 10 holding that an employer can havenolegal duty to an employee’s spouse who never stepped foot inside the employer’s facility.’ ” (Haver, supra, __ Cal.App.4th __ [2014 WL 2466570, at p. *3], quoting 4 Cetrulo, Toxic Torts Litigation Guide (2013) § 33:6, fn. omitted). “[T]he courts are also wary of the consequences of extending employers’liability too far, especially when asbestoslitigation has already rendered almost one hundred corporations bankrupt.” (Note, Continuing War with Asbestos: The Stalemate Among State Courts on Liability for Take-Home Exposure (2014) 71 Wash. & Lee L.Rev. 707, 710, fns. omitted.) Kesneris the first published opinion in California to impose a duty on an employer for secondary exposures, and the only appellate court in the country to have extended a dutyin favorof a guest in an employee’s home. As wediscussbelow, California law is now in conflict as to whether the burdens of imposing a duty for third parties’ alleged off-site exposures are too great, especially in comparison to any minimal foreseeability of latent harm to those third parties, to justify imposition of a duty of care. 11 B. Contrary to Kesner, several California appellate cases have held there is no duty for property owners or employers to people secondarily exposed. 1. Oddonev. Superior Court (2009) In Oddone, the plaintiff claimed employer-defendant Technicolor wasliable for take-home exposures from toxic vapors and chemicals her employee-husband absorbedon his workclothes and continually brought home from his employment starting decadesearlier. The trial court sustained Technicolor’s demurrer without leave to amend. On appeal, the court noted that no prior reported California decision had extended liability for take-home or secondary exposures. (Oddone, supra, 179 Cal.App.4th at p. 820.) The court applied the factors outlined in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) to determineif there was any duty owed by Technicolor to its employee’s spouse. The court recognized the endlessly expansive burden such a new duty would place on employers: [I]t is hard to draw the line between those nonemployee persons to whom a duty is owed and those nonemployee persons to whom nodutyis owed. Including“all family members’into the former category would be too broad, as not all family members will be in constant and personal contact with the employee. Limiting the class to spouses would be at once too narrow andtoo broad, as others may be in contact with the employee and spouses may not invariably be in contact with the 12 employee. Limiting the class to those persons who have frequent andpersonal contact with employees leaves at large the question what “frequent” and “personal” really means. This is only a sampling of the problem. (Oddone,.supra, 179 Cal.App.4th at p. 822.) The court concluded that imposing a duty towards non- employee persons would saddle the defendant employer with an uncertain but potentially very large burden, with untoward consequences to the communityin payingfor the costs of insuring against such “potentially massive”liability. “[I]n a less than perfect world it appears to make more sense to look to the nonemployee person’s insuranceto coverthe risk. In the normalcourse of events, such insurance will be already in place andits costis not likely to be influenced by the risk created by the employer’s conduct.” (Oddone, supra, 179 Cal.App.4th at p. 823.) 2. Campbell v. Ford MotorCo. (2012) Two years ago, in Campbell, the court followed Oddone in refusing to impose a duty based on claimed take-home exposures. In Campbell, plaintiff Eileen Honer developed plural mesothelioma in part, she claimed, from take-home exposuresto asbestos over a seven-year period starting in the mid-1940’s, when she was 11 or 12, from her father and brother, who both worked with and around asbestos-containing products. Between 1947 and 1948, Honer’s father and brother worked as insulators for an independent contractor hired by Ford Motor Companyin the construction of a Ford Motor Company Lincoln-Mercury plant in New Jersey, and 13 “were exposed to asbestos-containing products which caused their clothing, bodies, vehicles and tools to be contaminated with great quantities of respirable asbestos fibers.” (Campbell, supra, 206 Cal.App.4th at p. 20.) Plaintiff was in turn exposed to thefibers through contact with her father and brother “as well as their clothing and other belongings.” ([bid.) The Court of Appeal addressed “whether a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the courseof the property owner's business.” Asin Oddone, the answer was no: “Our examination of the Rowland factors leadsusto the conclusion Ford owed Honerno dutyofcare.” (Campbell, supra, 206 Cal.App.4th at p. 29, referring to Rowland.) A fundamental elementofany causeofaction for negligenceis the existence of a legal duty of care running from the defendant to the plaintiff. The existence and scope of any such dutyare legal questions for the court. “[D]uty is not an immutable fact of nature but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” (Campbell, supra, 206 Cal.App.4th at p. 26, internal quotation marks omitted.) “The elementof a legal duty of care generally acts to limit the otherwise potentially infinite hability’ that would otherwise flow from every negligent act.” (d. at p. 31, quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, internal citations and quotation marks omitted.) Campbell quoted with approvalthe rationale expressed by the court in Oddone, which rationale applies equally to premises and 14 employer defendants: “ “The gist of the matter is that imposing a duty toward nonemployeepersons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequencesto the communityof such an extensionis the cost of insuring against liability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to 2 the community may be considerable. (Campbell, supra, 206 Cal.App.4th at p. 33, quoting Oddone, supra, 179 Cal.App.4th at p. 822.) In cataloging foreign authorities, the court treated alike cases dealing with premises owners and employers. It stated: We note that, in recent years, a number of other jurisdictions have confronted the issue of liability in secondary or “take-home” exposure cases, and their rulings are generally split into two categories: (1) those focusing on the foreseeability of the harm to the plaintiff resulting from the premises owner’s or employer’s failure to take protective measures (and finding a duty), and (2) those that focus on the (absence of a) relationship between the premises owner/employer and household member amongotherpolicy concerns. (Campbell, supra, 206 Cal.App.4th at p. 33.) Campbell concluded that, under California law, a property owner owesno dutyto third parties for take-home exposures. In Kesner, the First District generally agreed with Campbell’s assessment that “foreseeability” and “extent of burden” to the defendant “have evolved to become the primary factors” in California whether to create a duty. (Typed opn. 7; Campbell, 15 supra, 206 Cal.App.4th at p. 33, citing Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 280, fn. 5.) The Kesnercourt also agreed with “the conclusion in Campbell that ...a landowner owesnoduty of care to those coming into contact with persons whoseclothing carries asbestos dust from the landowner’s premises.” (Typed opn. 7, emphasis added.) But the Kesner court sought to distinguish Campbell on the ground that the premises liability claim asserted in Campbell “was based on Ford’s passive involvement as owner of the plant in which an independent contractor was installing asbestos insulation.” (Typed opn. 7, emphasis added.) However, Ford was hardly passive. “Ford took possession of the property during the last three or four months Honer’s brother worked there. Ford’s own construction contracts called for the use of asbestos insulation and a Ford employee regularly checked on the progressofthe insulation work.” (Campbell, supra, 206 Cal.App.4th at p. 21.) The jurors were instructed to consider all of Ford’s conduct, including an instruction explaining that plaintiffs claim wasthat Ford “managedthis property”; that Ford “was negligent in the use or maintenance of the property.” The court further instructed the jury that “[a] person that owns property must use reasonable care to discover[] any unsafe conditions andto repair, replace or give adequate warning of anything that could be reasonably expected to harm others,” and that liability could be found if Ford knew or should have known about an unreasonable risk of harm,yet “failed to repair the condition, protect against the harm from the condition, or give adequate warning of the 16 condition.” (Id. at p. 22, emphasis added.) The claim was thus based on Ford’s active role in investigating, managing and maintainingits property. In any event, the passive or active nature of Ford’s involvement in the construction of its plant was neither characterized nor considered by the Campbell court. Rather, what weighed most heavily against imposing a duty were the extent of the burden to the defendant and the consequences to the community. As noted by Campbell, the principal difficulty with these factors is trying to draw a line between those nonemployee persons to whom a duty is owed and those nonemployeepersonsto whom no duty is owed. The relationship of third persons to the employee may have no bearing on the likelihood of being secondarily exposed. The categories of people potentially exposed could be enormous,includingnot only spouses and family members, but also fellow commuters, people performing laundry services, and more. Even among family membersthereis no rational line that can be drawn. (Campbell, supra, 206 Cal.App.4th at pp. 32-33.) Notably, the Kesner court made no attempt to distinguish Oddone, which involved an employer defendant. Instead, Kesner simply reached the opposite conclusion as to the weighing of competing policies—setting up a direct conflict in the law. (See typed opn.10.) 17 3. Elsheref v. Applied Materials, Inc. (2014) In January of this year, the Sixth District Court of Appeal decided Elsheref. In that case, a minor and his mother sued his father’s former employer for negligence after the minor was born with birth defects. (Elsheref, supra, 223 Cal.App.4th at pp. 453- 454.) Plaintiffs alleged the defects were caused by the father’s exposureto toxic chemicals at work. Because the defendant allegedly had knowledge of the potential harmful consequences of secondary exposures dueto its conduct, several of the Rowlandfactors (including the moral blame factor and the protection against future harm factor) weighed in favor of imposing a duty. The “remaining factors[,]” however, “weigh[ed] more strongly against a finding of duty.” (Elsheref, supra, 223 Cal.App.4th at pp. 460-461.) The Court ofAppeal found it compelling that there “was nota ‘close’ connection between [the defendant’s] conduct and [the plaintiffs] injuries.” (Id. at p. 460.) Rather, all of the defendant’s “allegedly culpable conduct... relate[d] to its treatment of [the plaintiffs] father....” (Ibid., emphasis added.) After consideringall of the Rowland factors, and relying in part on Oddone, the court concluded “a common law duty of care should not be imposed on [the defendant].” (Id. at p. 461, emphasis added.)! 1 Oddly, the Court of Appeal did allow plaintiffs’ strict liability claim to proceed on the ground that “Duty Is Not an Element of Plaintiffs’ Strict Products Liability Claim.” (Elsheref, supra, 223 Cal.App.4th at p. 463, emphasis omitted.) Of course, this court, (continued...) 18 Kesner bypassed the Elsheref holding entirely, not citing to the opinion atall. 4, Haver v. BNSF Railway Co. (2014) Shortly after Kesner was decided in Mayofthis year, Division Five of the Second District issued its divided opinion in Haver. Haver involved a wrongful death action in which the complaint alleged that Lynn Haver contracted mesothelioma as a result of coming into contact with her husband Mike’s clothing, tools, vehicles and general surroundings in the 1970’s while Mike was employed by defendant’s predecessor, the Santa Fe Railroad. The trial court sustained the demurrer without leave to amend, based on Campbell. On appeal, plaintiff argued Campbell was factually distinguishable and/or wrongly decided. Whereas in Campbell the (...continued) along with numerous others, have recognized that duty is an elementofa strict liability claim. (E.g., O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 348, 362 [“in strict liability as in negligence,” duty must be evaluated based on public policy factors beyond foreseeability; holding “defendants had no duty to warn ofrisks arising from other manufacturers’ products”].) And Elsheref was not, In any event, a case arising out of a manufacturer’s sale or distribution of a product, because the alleged exposures occurred during the manufacturing process, and not duringuseofa product sold in the stream of commerce. Elsheref’s duty analysis asto strict liability is not in play here, because as noted, no claimsof product liability remain against Abex in this case. But the opinion reveals yet further confusion about the scope of any duty that may be owed in take-homecases. 19 plaintiffs father and brother insulators had worked for an independent contractor in the construction of a Ford plant, Mike Haver wasa direct employee of the Santa Fe Railroad. The Haver court’s majority opinion did notfind that distinction ofany moment, ”course of the property owner’s business.” (Haver, supra, __ Cal.App.4th __ [2014 WL 2466570, at p. *2], quoting Campbell, supra, 206 Cal.App.4th at p. 29.) In the view of the Haver majority, the term “workers” as used in Campbell “includes those employed by the property owner, as well as those employed by independent contractors to work on the premises of the owner.” (Haver,at p. *2.) The majority correctly characterized Campbell as “consistent with the majority view on the issue of premisesliability to third parties based onoff-site exposure to asbestos.” (Id. at p. *3.) In fact, the majority view is that employers, not just premises owners, owe no such duty. Haver’s discussion of Kesner further complicatesthe picture, demonstrating the lack ofa unifying principle underlying California duty law in the take-home exposure context as it now stands. Haver sought to harmonize its holding with Kesner’s on the understanding—which is incorrect—that “the cause of action in Kesneris for productsliability.”2 (Typed opn. 1.) In fact, Kesner is 2 Even if that had been true, it would provide merely another reason for this Court to grant review—to consider whetherthe rule allowing or excluding a duty to prevent injury from alleged take- (continued...) 20 not a strict products liability case, or even a negligent products liability case: all product liability claims were summarily adjudicated and dismissed as against Abex. Kesner himself has never contended that he was exposed to any product sold by Abex. Kesneris, in fact, proceeding solely on a negligence claim arising out ofAbex’s managementofthe working environmentatits plant, the samescenario as in Oddone, Campbell, Elsheref and Haver. Thus,all of these cases together present the followingcritical question: if a property owner/employer does not owe a dutyforoff- premises secondary exposures, why would a_ property owner/employer who also happens to be a manufacturer (as in Kesner) owe a duty, especially in a case that does not include a product liability claim? The cases reveal no sound basis for a distinction. The dissent in Haver confusingly said that the majority “attempts to distinguish Kesner on the basis that Kesner is not a premises liability case but a negligence case.” (Haver, supra, __Cal.App.4th __ [2014 WL 2466570, at p. *4] (dis. opn. of Mink, J.).) The significance of any such distinction is unclear. The highly unusual depth of confusion concerning this growing trendof take- homecases warrants review by this Court. (...continued) home exposures should be framed in terms that apply equally to manufacturers as well as to premises owners and employers. 21 C. Most foreign courts reject any duty in secondary exposure cases. Courts and commentatorsacross the country have found that extending an employer's liability to an employee's family would necessarily create “a potentially limitless pool of plaintiffs.” (In re Certified Question from Fourteenth Dist. Court ofAppeals of Texas (2007) 479 Mich. 498 [740 N.W.2d 206, 220] (In re Certified Question).) Representative cases include: e Adamsv. Owens-Illinois, Inc. (1998) 119 Md.App. 395 [705 A.2d 58, 66] [no duty owedto others who comeinto contact with employee, thus no duty to wife who handled husband’s clothes]; e CSX Transp., Inc. v. Williams (2005) 278 Ga. 888 [608 S.E. 208, 210] [refusing to extend “employer’s duty beyond the workplace to encompassall who might come into contact with an employee or an employee’s clothing outside the workplace’; e Doe v. Pharmacia & Upjohn Co., Inc. (2005) 388 Md. 407 [879 A.2d 1088, 1096] [imposition of duty “would create an indeterminate class of potential plaintiffs”; plaintiff suggested limiting duty to spouses, but court refused to find even that limited duty]; e Nelson v. Aurora Equipment Co. (2009) 391 IIll.App.3d 1036 [909 N.E.2d 931, 934] [noting concern that imposition of duty “would create a limitless number of potential 22 plaintiffs, as literally anyone who came in contact with [the] work clothes could be exposed”); e Van Fossen v. MidAmerican Energy Co. Iowa 2009) 777 N.W.2d 689, 699 [power plant owed no general duty of reasonable care to wife of independent contractor’s employee; expansionofduty to spouses ofemployees would “Justify a rule extending the duty to a large universe of other potential plaintiffs who nevervisited the employers’ premises but came into contact with a contractor’s employee’s asbestos-tainted clothingin a taxicab, a grocery store, a dry-cleaning establishment, a conveniencestore, or a Laundromat. We conclude such a dramatic expansion of lability would be incompatible with public policy, and therefore reject it.”]; e Matter of New York City Asbestos Litig. (2005) 5 N.Y.3d 486 [840 N.E.2d 115, 122] [holding an employer’s duty to provide a safe workplace is limited to employees, and defendant’s duty did not extend to an employee’s wife; rejecting plaintiffs’ argument that any new take-home duty may be confined to members of the employee’s household becausethat“lineis not so easy to draw,” given that people who are not residents in the home (such as child care workers and those at establishments charged with laundering the employee’s clothes) mayhaveat least as great a potential for secondary exposure as some immediate family members]; 23 e In re Certified Question, supra, 740 N.W.2d at p. 220 {imposition of a duty to nonworkerscould lead to lawsuits against “‘countless employers directly in asbestos and other mass tort actions brought by remotely exposed persons such as extended family members, renters, house guests, carpool members, bus drivers, and workers at commercial enterprises visited by the worker when he or she was wearingdirty workclothes’ ”; holding a property ownerdid not owe deceased, who wasneveron or near the property, a duty to protect her from asbestosfibers carried homeon the clothing of a family member].? To counter the widespread concern about liability that reaches far beyond any employer’s or premises owner's expectations about claimsbyplaintiffs with whom they have no businessor other relationship, some commentators have suggestedlimiting any duty of care to plaintiffs who were the employee’s immediate family members, living full-time in the same household. (See Levine, 3 See also Riedel v. ICIAmericas Inc. (Del. 2009) 968 A.2d 17, 27 [employer has no duty to wife of employee exposed to husband’s clothes]; Price v. E.I. DuPont de Nemours & Co. (Del. 2011) 26 A.3d 162, 170 [wife could not state a claim in negligence against her husband’s employerfor disease allegedly resulting from exposure to husband’s clothes]; Boley v. Goodyear Tire & Rubber Co. (2010) 125 Ohio St.3d 510 [929 N.E.2d 448, 453] [premises ownernotliable in tort for claimsarising from asbestos exposure originating from the owner's property unless exposureoccurredat the owner’s property; decision based on statute]; Martin v. Cincinnati Gas and Elec. Co. (6th Cir. 2009) 561 F.3d 439, 447 [premises ownerowedno duty to employee’s son because injury from take-home exposure was not reasonably foreseeable]. 24 Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation (2011) 86 Wash.L.Rev. 359, 392.) A few courts have adopted that approach. (E.g., Zimko v. American Cyanamid (La. 2005) 905 So.2d 465, 482-483 [where plaintiff claimed take home exposures throughhisfather, the court imposed a dutyofcare on the employer, but in light of the lack of precedent and “the novelty of the duty” it created, the court limited the duty to “household members”of the defendant’s employees]; Simpkinsv. CSX Corp.(2010) 401 Ill.App.3d 1109 [929 N.E.2d 1257, 1266] [“we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure”], appeal allowed(Ill. 2010) 238 Ill.2d 675 and affd but criticized sub nom. Simpkins v. CSX Transp., Inc. (2012) 358 Ill.Dec. 613 [965 N.E.2d 1092]; Olivo v. Owens-Illinois, Inc. (2006) 186 NJ. 394 [895 A.2d 1143, 1149] [imposing a duty limited narrowly to “spouses handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing”]; Chaisson v. Avondale Industries, Inc. (La. 2007) 947 So.2d 171, 200 [finding employer owed duty to employee’s wife for take home asbestos exposures, but clarifying that the duty was based on “the facts and circumstances of this case,” wasnot “a categorical duty rule,” and was limited to a spouse exposed “from laundering her husband’s work clothes”); Rochon v. Saberhagen Holdings, Inc. (2007) 140 Wash.App. 1008 [wife of employee could attempt to state a claim based on general negligence for take-home exposure from laundering husband’s clothes].) 25 This survey of cases nationwide further demonstrates that review should be granted to decide whether California should decline to recognize any take-homeduty at all (as the majority of courts to consider the issue have done), or to recognize a limited duty that would nonetheless require dismissal of the plaintiff's action here (as a minority of courts have done), or to recognize a broad duty to anyone who had not-inconsequential contact with someone in direct contact with asbestos or other toxins (as only Kesner has done). D. Kesner’s legal analysis deepens the confusion and conflict among California courts regarding the scope of duties owed to plaintiffs who allege take-home exposures. The reasonsgiven by the Court of Appealfor distinguishing this case from Campbell do not withstand analysis, and demonstrate the need for guidance from this court. In particular, Kesner’s active-passive distinction—imposing a duty on a defendant as to unknownthird parties so long as the defendant is accused of “active” negligence—sets up an unworkabletestfor liability. Kesner says that Ford, as the premises ownerresponsible for maintaining a safe environmenton its property, was “passive” (and owed no duty), while Abex, as the premises owner responsible for maintaining a safe environment in the workplace was“active” (and owed a duty). Both had the duty to use reasonable care in the use of their premises, and both allegedly had knowledge during the relevant 26 time frame that exceedingly low-dose chrysotile exposures could pose a potential risk of harm (a debatable scientific proposition at best). Further, the Campbell court specifically said its “analysis does not turn on” the distinction between Ford hiring the workers or an independent contractor doing so. (Campbell, supra, 206 Cal.App.4th at p. 31, fn. 6.) Indeed,no othercase in the country has drawna distinction between employers and landownersin deciding duty, regardless of which way it was decided. The Kesneropinion recognized that the “ ‘Rowland factors are evaluatedat a relatively broadlevelof factual generality. . . . [T]he court’s task in determining duty “is not to decide whether a particularplaintiffs injury was reasonably foreseeablein light of a 9? 9 99particular defendant’s conduct .... (Typed opn. 5, emphasis omitted.) Review is essential to determine whether and howatest based on distinguishingactive from passive conduct can be applied without delving into a high degree of factual specificity. That question arises not only with employers making asbestos-containingproducts, or employers using toxic chemicals;it will arise with all employers and all landowners. Anything that can be conveyedoff the property and cause harm to others could be a basis for suing the employer or landowner. For example, if a worker takes his tools homeand, while not in the course ofhis employment, he or someonehe knows“foreseeably”usesthe tools andis injured, does the employer owe a duty to the injured person? A finding of duty here will open the doorto an effort to tie back manyinjuries to a “deep pocket” employer or landowner. The issue thus must be viewed from a higher level than Kesner uses. 27 Finally, Kesner evaluates the elementof foreseeability based on fact-specific (and highly contested) assumptions about the state of employers’ understanding in the 1970’s and 1980’s as to low-dose chrysotile exposures that were not at the time linked to any increased risk to occupationally exposed bystanders, much less family members with no occupational exposure. The court expressed its belief that, “[a]s a general matter, harm to others resulting from secondary exposure to asbestos dust is not unpredictable.”4 (Typed opn. 8.) The court further suggested that the Rowland factors must be applied to each individual claim, based on “inconsequential” or “not inconsequential” contact with the employee,to see ifthere is a “different balance” to be found. (Typed opn. 11.) This is precisely the kindoffact-specific analysis that this Court has held should not be undertaken. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772-773 (Cabral).)5 In contrast, examiningthe question from a more appropriate level of factual generality, the Campbell opinion observed that “the 4 The court should have evaluatedpredictability and foreseeability at the time of the alleged exposures. But even today, the court’s unqualified assumption about non-occupational exposure risk is flawed: the weight of the scientific evidence is that full-time automotive mechanics are not at an increased health risk from working with automotive friction products, such as the brakelinings Abex manufactured—which further demonstrates the shaky foundation for the approach adopted by the court in Kesner. 5 This court in Cabral also said, “Generally speaking, where the injury suffered is connected only distantly and indirectly to the defendant's negligent act, the risk of that type of injury from the category of negligent conduct at issue is likely to be deemed unforeseeable.” (Cabral, supra, 51 Cal.4th at p. 779.) 28 ‘closeness of connection’ between Ford’s conduct in having the work performed and theinjury suffered by a worker’s family memberoff the premises”is attenuated. (Campbell, supra, 206 Cal.App.4th at p. 31.) That is particularly true if one looks at the issue without considering the fact-specific element of knowledge, which notall types of employers (or landowners)will have in all time periods and all scenarios in which theissuecanarise. Review is necessary to evaluate the interplay between the parties’ respective argumentsaboutforeseeability on one hand, and the comparative burden on employersas a class, and on society on the other hand, shouldliability for alleged take-home exposures be imposed. CONCLUSION Five years ago Oddone becamethefirst reported California decision to address the duty of an employer to nonemployeesin take-home exposure cases. Two years ago, Campbell held that “‘tort law must draw a line between the competing policy considerationsofproviding a remedyto everyone whois injured and 299of extendingtort liability almost without limit.’” (Campbell, supra, 206 Cal.App.4th at p. 34, quoting Landin, supra, 16 J.L. & Pol’y at pp. 624, 626.) This year, Elsheref, Kesner and Haver drew the duty line at different points for similarly situated defendants, using a variety of rationales. In light of the divergent analyses among the cases addressing take-home exposureliability, the state of the law 29 in California is in dire needof clarification. This Court should grant review. June 24, 2014 HORVITZ & LEVY LLP LISA PERROCHET ROBERT H. WRIGHT BRYDON HUGO & PARKER EDWARD R. HUGO JAMES C. PARKER JEFFREY KAUFMAN Attorneys for Real Party In Interest PNEUMO ABEX, LLC 30 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(1).) The text of this petition consists of 7,031 words as counted by the word processing program used to generate thepetition. Llp Robert H. Wright Dated: June 24, 2014 31 Filed 5/15/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE JOHNNY BLAINE KESNER,JR., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA A136378 COUNTY, dent: (Alameda County Respondent; Super. Ct. No. RG11578906) PNEUMOABEX LLC, Real Party in Interest. JOHNNY BLAINE KESNER,JR., Plaintiff and Appellant, A136416 V. PNEUMO ABEX,LLC, Defendant and Respondent. Johnny Blaine Kesner,Jr., appeals following the grant of a motion for nonsuit in favor of Pneumo Abex, LLC (Abex). Kesner’s uncle was employed by Abex from 1973 to 2007. Kesner seeks to hold Abex liable for mesothelioma he contracted, allegedly due in part to his exposure, while present in his uncle’s home,to friable asbestos that his uncle brought home from work on his clothing. In granting nonsuit in Abex’s favor, the trial court, relying on the decision in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 (Campbell), concludedthat “Abex owed no 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.” In defendingthe ruling, Abex contends that “no duty is owed [by an employer] to family members of workers for take-home exposures.” We do not believe that such a broad and unqualified limitation on an employer’s duty accurately states the law. We accept the premise thatthe prospect of “indeterminate liability” places a limitation on those to whom the duty ofexercising reasonable care may extend.(E.g., Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 392.) We also recognizethe difficulty in articulating the limits of that duty and the different conclusions that courts throughout the country have reached whenconsidering claims for secondary exposureto toxics, particularly asbestos, emanating from the workplace.' The duty of care undoubtedly does not extend to every person who comesinto contact with an employer’s workers, but we conclude that the duty runsat least to members of an employee’s household whoarelikely to be affected by toxic materials brought home on the worker’s clothing. While Kesner wasnot a memberofhis uncle’s householdin the normal sense, he wasa frequentvisitor, spending several nights a week in the home. After consideration of the factors specified in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland),as instructed by our Supreme Court in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 (Cabral), we conclude that the likelihood of causing harm to a person with such recurring and non-incidental contact with the employer’s employee, in this case Kesner’s uncle,is sufficient to bring Kesner within the scope of those to whom the employer, in this case Abex, owes the duty to take reasonable measures to avoid causing harm. BACKGROUND Kesner was diagnosed with perotineal mesothelioma in February 2011. Hefiled suit against a numberof defendants,including Abex,to recover damagesfor his injuries. His complaintalleges causes ofaction for negligence, breach of express and implied See Levine, Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation (2011) 86 Wash. L.Rev. 359, 360, and the cases cited therein; see also, more recently, Clair v. Monsanto Co. (Mo.App. 2013) 412 S.W.3d 295. 2 warranties, andstrict productsliability arising from his contact with asbestos manufactured or supplied to him as a workeror enduser. Kesner’s claims wereresolved against all other defendants, all of which apparently were companies(or their successors) for which Kesner was himself employed and exposedto asbestosat their premises. Kesner’s remaining claim against Abex is based on the fact that Kesner’s uncle was an Abex employee whoallegedly was exposedto harmfullevels of asbestos in his job. Between 1973 and 1979 Kesner wasa frequent guest in his uncle’s home,andoften spent the night there.” The uncle allegedly came homein his work clothes covered in asbestos dust. While he wasstill in his work clothes, Kesner’s uncle would often play with Kesner and sometimessleep near him. Kesner alleges that his exposure to the asbestos dust on his uncle’s clothing contributed to his contracting mesothelioma. At the beginning oftrial, Abex moved for a nonsuit. Abex argued that it had no legal duty to prevent asbestos exposure to Kesner underthe rule announced in Campbell, supra, 206 Cal.App.4th 15. The superior court granted Abex’s motion for nonsuit and entered a final judgmentin its favor, holding that Abex owed Kesnerno duty for his exposure to asbestos resulting from Kesner’s contact with its employee. Kesnerinitiated proceedings in this court with a petition for a writ of mandate. The samedayhealsofiled a notice of appealin the superior court. This court determined that the writ review processis appropriate in this situation to expedite consideration of this issue to the extent possible due to Kesner’s declining health. * Whenaskedat his deposition how often he wouldsee his uncle, Kesnertestified, “In my childhood, once or twice a week. AsI gotlater into my teens, three to four times a week. I mean, once I got my driver’s license, it seemed like I wasup thereall the time.”When asked howoften hestayed at his uncle’s house, he answered, “During myteen years, every once in a while. Once I joined the service, I would come home,andthat’s . . . whereI stayed when I came home.”Whenthe uncle was asked how often he saw Kesner when the uncle was employed at Abex, the uncletestified “he probably stayed at my house on average of three days a week. Sometimesit might only [have] been one time. Sometimesit might have been a whole week. But I’d say on average of three days a week.” Abex movedtostay the appeal pending outcomeofthe writ proceeding. On December 21, 2012, this court stated that if no objections were filed within 10 days,it would consolidate the appeal, Kesner v. Pneumo Abex, LLC, A136416, with the writ proceeding, Kesner v. Superior Court, A136378, deem the return andtraverse filed in the writ proceeding to be the respondent’s brief and appellant’s reply brief in the appeal, and consider the appealto befully briefed. No objections werefiled, and the cases are now consolidated with the briefing in the writ proceeding serving to complete briefing in the appeal. Wegranted requests of the Association of Defense Counsel ofNorthern California and Nevadaand the Association of Southern California Defense Counselto file an amicusbrief and allowedpetitioner an opportunity to respond, which he did not do. DISCUSSION Weindependently review an order granting a nonsuit and will not affirm the judgmentunless, after interpreting the evidence most favorably in favorofthe plaintiff and against the defendant, a judgmentfor the defendant was requiredas a matter oflaw. (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) Such is not the case here. This case involvesthe assertedliability of a negligent manufacturerto a plaintiff for injuries arising as a result of the plaintiff's exposure to a harmful substance through contact with the manufacturer’s employee away from the manufacturer’s premises. Cases commonly refer to this situation as presenting a claim of secondary, para-occupational, or take-home exposure to a harmful substance. (See Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 821; Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1107.) “The generalrule in California is that ‘[e]veryone is responsible . . . for an injury occasionedto another by his or her wantofordinary careor skill in the management of his or her property or person. . . .” (Civ. Code, § 1714, subd.(a).) In other words, ‘each person has a duty to use ordinary care and“is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” ’ ” (Cabral, supra, 51 Cal.4th at p. 771.) But departures from the general rule favoring liability are warranted whenclearly supported by public policy. (Rowland, supra, 69 Cal.2d at p. 112.) “A departure from this fundamentalprinciple involves the balancing of a number of considerations; the major ones are the foreseeability of harm tothe plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blameattached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequencesto the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and the prevalence of insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at pp. 112-113.) Application of the factors identified in Rowlandis the starting point for analysis of whether to impose a duty ofcare in a secondary exposurecaselike this one. (Oddone v. Superior Court, supra, 179 Cal.App.4th at p. 819.) Thereis “an important feature of the analysis” that must be taken into account when we apply Rowland. (Cabral, supra, 51 Cal.4th at p. 772.) “[T]he Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, [our Supreme Court has] explained that the court’s task in determining duty ‘is not to decide whether particularplaintiff s injury was reasonably foreseeablein light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conductat issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed.. . .” [Citations.] [§] . . . [J] By making exceptions to Civil Code section 1714’s general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owedtheplaintiff no duty of ordinary care, whichis for the court to make, and a determination that the defendant did not breach the duty of ordinary care, whichin jurytrial is for thejury to make.” (Cabral, p. 772.) In Campbell, the court weighed the various Rowland factors and concludedthat “a property ownerhas no dutyto protect family members of workers on its premises from secondary exposure to asbestos used during the courseofthe property owner’s business.” (Campbell, supra, 206 Cal.App.4th at p. 34;italics added.) The court correctly noted that “In California, ‘[florseeability and extent ofburden to the defendant . . . have evolved to becomethe primary [Rowland] factors’ to be considered on the questionoflegal duty.” (Campbell, p. 33.) Focusing on the obligations of a premises owner, the court notedthat “ “Generally speaking, wherethe injury suffered is connected only distantly and indirectly to the defendant’s negligentact, the risk of that type of injury from the category of negligent conductat issue is likely to be deemed unforeseeable.’ ”(id. at pp. 29-30, quoting Cabral, supra, 51 Cal.4th at p. 779) and that “while [the plaintiff in that case] seeks to hold Ford liable for its managementofits premises,it is undisputedthat [the plaintiff] never set foot on those premises ... . A property owner’s duty to maintainits premisesin a reasonably safe condition extendsto all areas visitors are expressly or impliedly invited to use and over which the ownerexercise actual or apparent control . . . a property owner is ‘not ordinarily liable for injuries that occur on property notin his ownership, possession, or control unless he created the condition or had a right to control 9°99activities at the site.” (Campbell, supra, at p. 30.) The court in Campbell deemed “the extent of the burden to the defendant and the consequencesto the community if the court imposes on a particular defendant a duty of care toward the plaintiff [to] weigh heavily against [the plaintiff].” (Campbell, supra, 206 Cal.App.4th at p. 32.) The court quoted approvingly from Oddone v. Superior Court, supra, 179 Cal.App.4th at pp. 822-823: “ ‘The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain butpotentially very large scope. One of the consequencesto the community of such an extensionis the cost of insuring againstliability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer.In short, the burden on the defendantis substantial and the costs to the community may be considerable.’ ” (Campbell, p. 33.) The court also quoted from a Michigan decision concluding that “ “imposing a duty on a landowner to anybody who comesin contact with somebody who has been on the landowner’s property’ (and secondarily exposed to asbestos as a result) ‘ “would create a potentially limitless pool of plaintiffs.” ’ ” Ud. at p. 34, quoting Miller v. Ford Motor Co. (In re Certified Question) (2007) 479 Mich. 498, 521 [740 N.W.2d 206, 220].)° Weneed not question the conclusion in Campbell that under Rowland and Cabral, a landowner owes no duty of care to those coming into contact with persons whose clothing carries asbestos dust from the landowner’s premises. The claim against Ford Motor Companyasserted in Campbell was based on Ford’s passive involvement as owner of the plant in which an independent contractor wasinstalling asbestos insulation. Plaintiffs claim in the present case is not based on a theory of premisesliability but on a claim of negligence in the manufacture of asbestos-containing brake linings. While the same Rowland factors are pertinent to the analysis of a negligence claim, the balancethat mustbe struck is not necessarily the same as under a claim of premises liability. The norm in considering negligence claimsis the general duty to use reasonable care to avoid injuring others. When considering the scope of an employer’s obligations under the concept of respondeat superior for harm to others caused by an employee, the focus is on 6 oe 6whether “the employee’s act was an ‘outgrowth’ of his employment, inherent in the 9°99 9 6 Ge 93°29 66working environment, typical of or broadly incidental to” “the employer’s business,or, in a general way, foreseeable from his duties.” (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 482.) The same questions are pertinent to the scope of an employer’s duty of care to others injured by interaction with the employer’s workers. Consideration of the Rowland factors as they bear on a negligence claim does not lead to the conclusion that an employer responsible for exposing its employees to a toxin > The court also quoted other out-of-state authority reaching the same conclusion with respect to negligence claims.It also recognized the split of authority on this issue among the states. (Campbell, supra, 206 Cal.App.4th at pp. 33-34.) 7 such as asbestos, or for failing to warn or take reasonable protective measures, bears no responsibility to any nonemployee foreseeably affected by exposureto the toxin. Without discussion, the contrary has been assumedin prior reported cases (e.g., Bettencourt v. Hennessy Industries Inc., supra, 205 Cal.App.4th 1103) and in numerouscases resolved in our trial courts without appeals having been taken. This is so for good reason.Thefirst three factors identified in Rowlandare related and tend to support extension ofthe employer’s duty beyond its employees. As a general matter, harm to others resulting from secondary exposure to asbestos dust is not unpredictable. The harm to third parties that can arise from a lack of precautionsto control friable asbestos that may accumulate on employees’ work clothing is generally foreseeable. There often is no doubt that a plaintiff, like Kesner, suffering from malignant mesothelioma, has suffered injury due to exposure to friable asbestos. Whether exposure from any particular source was a substantial factor in causing a plaintiffs injury may often be questionable (see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 977), but that uncertainty exists with respect to many exposure claims, whether direct or secondary. Moral blame,the fourth of the factors identified in Rowland, also tends to support extension of an employer’s responsibility to more than its employees. Assuming, as we must, the truth of Kesner’s allegation that Abex was awareoftherisks to those exposed directly or indirectly to the asbestos dust generated in its facility and took no steps to avoid those risks, certainly such indifference would be morally blameworthy. What Abex actually knew andthesufficiency of steps it may have taken to prevent harmful exposure goes to the question of whether Abex was in fact negligent as Kesner alleges, but Abex’s denials do not bear on the “relatively broad level of factual generality” (Cabral, supra, 51 Cal.4th at p. 772) that bears on the existence of a duty. Rowlandalso instructs that we are to consider whether imposing a duty ofcare will advance a policy of preventing future harm. It may betrue, as the court observed in Campbell, supra, 206 Cal.App.4th at page 33, that asbestosis already the subject ofstrict regulation under both federal and California law. And in Taylorv. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 595, the court observed that “exposures have already taken place, andin light of the heavily regulated nature of asbestos today, it is most unlikely that holding [the supplier of non-asbestos products] liable for failing to warn of the danger [of asbestos contained in products manufactured and supplied by others] will do anything to prevent future asbestos-related injuries.” (Fn. omitted.) Yet, asbestosis not the only toxin to which an employer’s obligations apply. A rule of law that holds an employer responsible to avoid injury to nonemployees who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing process can be expected to prevent harm to others in the future. As the Missouri Court of Appeals stated in applying California law to a claim of indirect injury against a chemical manufacturer, “the imposition of a duty serves as a warning for manufacturers creating potentially dangerous products to be cautious.” (Clair v. Monsanto Co., supra, 412 S.W.3d at p. 309.) It is the next two Rowland factors—the extent of the burden to the defendant and the consequences to the community if the court imposes too broad a duty—that have led California courts to limit the reach of liability even for injuries that are foreseeable. The leading authority for such a limitation,in a very different context, undoubtedly is Bily v. Arthur Young & Co., supra, 3 Cal.4th 370. There, our Supreme Court pointed out that “[e}]ven when foreseeability was present” it had previously “declined to allow recovery on a negligence theory when damage awardsthreatened to imposeliability out of proportion to fault or to promotevirtually unlimited responsibility for intangible injury.” (d. at p. 398.) In that case, the court refused to imposethird party liability on financial auditors because of “the spectre of vast numbersofsuits and limitless financial exposure” out of proportionto their potential fault. /d. at p. 400.) Similarly, in refusing to permit an unmarried cohabitant to recover damages for emotional distress caused by the negligence of another in his immediate presence, the court quoted from Prosser, Law of Torts: “‘[I]f recovery [for mental distress] is to be permitted, there must be some limitation. It would be an entirely unreasonable burden on all humanactivity if the defendant who has endangered one man wereto be compelled to payfor the lacerated feelings of every other person disturbed by reasonofit, including every bystander shockedat an accident, and every distant relative of the person injured, as well as his friends.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 276, quoting Prosser, Law of Torts (3d ed. 1964) § 55, pp. 353- 354; see also, e.g., Thing v. La Chusa (1989) 48 Cal.3d 644, 668.) The needto place a limit on those to whom the duty of reasonable care extends in contexts muchcloserto the situation in the present case was the determinative factor in both Campbell and Oddone. Thosecasesalso relied on the final Rowlandfactor, the relative cost and availability of insurance covering the particular risk. The threat of unlimited liability, those courts felt, could restrict the ability of employers to obtain insurance, while individuals may obtain insurance covering medical expenses incurred as a result of illness arising from toxic exposure. In weighing these competing considerations, the balancefalls far short of terminating liability at the door of the employer’s premises. While foreseeability of harm _is not in California the exclusive consideration,it is among the mostsignificant, if not the single most significant, factor. And there is a high degree of foreseeability ofharm from secondary, or take-home, exposure to those whose contact with an employer’s workersis not merely incidental, such as membersoftheir household or long-term occupants of the residence. The weight ofthis factor is strengthened by consideration of the moral blame attributable to disregarding a known risk to others and the important public policy of preventing future harm. On the other hand, extending the employer’s duty of care to such persons does not threaten employers with potential liability for an intangible injury that can be claimed by an unlimited numberofpersons. Unlike indirect financial loss or mental anguish that were of concern in Bily and Elden, mesothelioma(in particular, and other toxic-related diseases in general) can hardly be claimed by everyone. Noris there reason to believe that manufacturers cannot obtain insurance coverage to protect against their liability, while individuals cannot purchase insurance covering loss of income or their own pain and suffering resulting from a toxic-induced illness such as mesothelioma. 10 In concluding that Abex’s duty of care extends to Kesner, a long-term guest in the home of Abex’s employee, we emphasize that our ruling is based on the assumption, required by the standard for reviewing the sufficiency of the allegations of a complaint, that Kesner’s contact with his uncle was extensive. As to such persons, the forseeability of harm is substantial. As to persons whose contact with an employer’s worker is only casualor incidental, the forseeability ofharm and the closeness of the connection between the defendant’s conduct and theplaintiff's injury may be so minimal as to produce a different balance of the Rowlandfactors. Weholdthat there is a duty underthe circumstancesalleged in the present case, but we do not address other circumstances that are not before us. Finally, in holding that a duty exists in this case, we emphasize the obvious — that the existence of the duty is not the sameas a finding of negligence. Abex apparently disputes manyofthefacts alleged in plaintiffs complaint, including the extent ofits knowledgeat the time in question, the reasonableness of the measuresit took to prevent asbestos from being carried home onthe clothing of its employees, and the extent to which asbestos from its plant played any role in causing Kesner’s mesothelioma. Needless to say, these are factual questions left for future determination, as to which we express no opinion. DISPOSITION The judgmentis reversed. Pollak, Acting P.J. We concur: Siggins, J. Jenkins,J. 11 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeof service, I was over 18 years of age and not a party to this action. I am employedin the County of Los Angeles, State of California. My business address is 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On June 24, 2014, I served true copies of the following document(s) described as PETITION FOR REVIEWontheinterested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondencefor mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare underpenalty ofperjury underthe lawsofthe State of California that the foregoing is true and correct. Executed on June 24, 2014, at Encino, California. MD Cnty) Millie Cowley SERVICE LIST Kesner v. The Superior Court ofAlameda County Court ofAppeal Case No. A136378 consolidated w/ A136416 Edward R. Hugo James C. Parker Jeffrey Kaufman Brydon Hugo & Parker 135 Main Street, 20th Floor San Francisco, CA 94105 Cindy Saxey Benno Ashrafi Josiah Parker Weitz & Luxenberg, P.C. 1880 Century Park East, Suite 700 Los Angeles, CA 90067 Ted W.Pelletier Kazan, McClain Satterley & Greenwood Jack London Market 55 Harrison Street, Suite 400 Oakland, CA 94607 California Court of Appeal First Appellate District, Div. Three 350 McAllister Street San Francisco, CA 94102-7421 Hon. John M.True,III Alameda County Superior Court Administration Building 1221 Oak Street, Rm. 260, Dept. 23 Oakland, CA 94612 Attorneysfor Real Party in Interest Pneumo Abex, LLC Attorneys for Petitioner Johnny Blaine Kesner, Jr. Attorneys for Petitioner Johnny Blaine Kesner, Jr. Case No. A136378 (consolidated w/ A136416) electronically submitted Case No. RG11578906