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Haver v. BNSF Railway Co.

California Court of Appeals, Second District, Fifth Division

June 3, 2014

JOSHUA HAVER et al., Plaintiffs and Appellants,
v.
BNSF RAILWAY CO., Defendant and Respondent.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[As Modified on June 23, 2014]

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC435551, Richard E. Rico, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Waters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants.

Sims Law Firm and Selim Mounedji for Defendant and Respondent.

OPINION

KRIEGLER, J.

Relying on the holding in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 [141 Cal.Rptr.3d 390] (Campbell), the trial court sustained a demurrer without leave to amend in a wrongful death action based on premises liability brought by the survivors of a woman who died of mesothelioma as a result of exposure to asbestos from her husband’s work clothes. The survivors argue that Campbell is distinguishable on its facts, or in the alternative, it was incorrectly decided. They also contend that Kesner v. Superior Court (2014) 226 Cal.App.4th 251 (Kesner), a case decided after oral argument in this appeal, compels a finding of error.

We reject the argument that Campbell, supra, 206 Cal.App.4th 15, is distinguishable on its facts. We also conclude that Campbell’s holding, which is consistent with the majority view in the nation on the issue, correctly applies California law. The opinion in Kesner expressly declined to question the holding in Campbell, and the cause of action in Kesner is for products liability, not premises liability, as in Campbell and the instant case. Therefore, we affirm.

ALLEGATIONS OF THE COMPLAINT

Lynn Haver (Lynn)[1] contracted mesothelioma 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 1970’s. Mike was 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, where Lynn was exposed.

Lynn was at all times unaware of the hazardous conditions or the risk of personal injury and death to those working in the vicinity of products and materials containing asbestos, and was not aware of the effects of secondary

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exposure to her own well-being. BNSF knew at all times of the danger of asbestos exposure, including secondary exposure to the spouses of its employees, but failed to abate the dangerous conditions on its premises or warn Lynn of their existence.

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 ...


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