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Kesner v. Superior Court - 1 Cal. 5th 1132, 210 Cal. Rptr. 3d 283, 384 P.3d 283 (2016)


The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act. But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. The proper test to be applied to the liability of the possessor of land is whether in the management of the property he or she has acted as a reasonable person in view of the probability of injury to others. In determining whether a premises owner owes a duty to persons on its property, the court applies the Rowland factors.


This was a consolidation of two cases involving secondary exposure to asbestos. The first case involved plainiff Johnny Blaine Kesner, Jr. who was diagnosed with perotineal mesothelioma—cancer of the chest and abdomen closely associated with asbestos exposure—in Feb. 2011. Johnny was exposed to asbestos on the clothing of his uncle, in whose home he spent an average of three nights a week. Johnny a lawsuit in California state court against defendant Pneumo Abex, LLC, which was his uncle's employer. The trial court granted the employer’s motion for nonsuit and entered judgment on the basis that the employer had no duty to Johnny. The court of appeals reversed the trial court’s decision. The second case involved Lynne Haver who was diagnosed with mesothelioma in March 2008 and died in April 2009. Her children filed a wrongful death and survival action alleging that Lynne's exposure to asbestos was by way of her former husband, Mike Haver, who worked for defendant BNSF Railway Company's predecessor. The children raised claims of negligence, premises owner and contractor liability, and loss of consortium. The trial court sustained BNSF's demurrer. The court of appeals affirmed.


Did an employer who used asbestos in the workplace have a duty of care to protect employees' household members from exposure to asbestos?




The state supreme court held that the duty of employers and premises owners to exercise ordinary care in their use of asbestos included preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it was reasonably foreseeable that workers, their clothing, or personal effects would act as vectors carrying asbestos from the premises to household members, employers had a duty to take reasonable care to prevent that means of transmission. This duty also applied to premises owners who used asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. The court further held that that the duty extended only to members of a worker's household. The court reversed and vacated the lower courts' judgments and remanded the matters.

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