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Kesner v. Superior Court (Pneumo Abex LLC)

California Court of Appeals, First District, Third Division

May 15, 2014

JOHNNY BLAINE KESNER, JR., Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent PNEUMO ABEX LLC, Real Party in Interest. JOHNNY BLAINE KESNER, JR., Plaintiff and Appellant,
v.
PNEUMO ABEX, LLC, Defendant and Respondent.

[REVIEW GRANTED BY CAL. SUPREME COURT]

Alameda County Superior Court of Alameda County, No. RG11578906, John M. True III, Judge.

Page 252

[Copyrighted Material Omitted]

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COUNSEL

Weitz & Luxenberg, Benno Ashrafi, Cindy Saxey, Josiah Parker; Kazan, McClain, Satterley and Greenwood and Ted W. Pelletier for Plaintiff and Appellant.

Brydon Hugo & Parker, Edward R. Hugo, James C. Parker and Jeffrey Kaufman for Real Party in Interest.

Gordon & Rees and Don Willenburg for Association of Defense Counsel of Northern California and Nevada as Amicus Curiae on behalf of Real Party in Interest.

Horvitz & Levy, Curt Cutting and Steven Fleischman for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Real Party in Interest.

OPINION

Pollak, Acting P.J.

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

Page 254

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 [141 Cal.Rptr.3d 390] (Campbell), concluded that “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 defending the 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 that the prospect of “indeterminate liability” places a limitation on those to whom the duty of exercising reasonable care may extend. (E.g., Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 392 [11 Cal.Rptr.2d 51, 834 P.2d 745].) We also recognize the difficulty in articulating the limits of that duty and the different conclusions that courts throughout the country have reached when considering claims for secondary exposure to toxics, particularly asbestos, emanating from the workplace.[1] The duty of care undoubtedly does not extend to every person who comes into contact with an employer’s workers, but we conclude that the duty runs at least to members of an employee’s household who are likely to be affected by toxic materials brought home on the worker’s clothing. While Kesner was not a member of his uncle’s household in the normal sense, he was a frequent visitor, spending several nights a week in the home. After consideration of the factors specified in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561] (Rowland), as instructed by our Supreme Court in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 [122 Cal.Rptr.3d ...


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