In 1972, at age 10, Kesner and his mother moved to Romney, West Virginia, where Kesners aunt and uncle, Francis and George, lived. As a child, Kesner visited his uncle Georges home once or twice a week, and as a teenager three or four times a week; after he joined the Navy in 1979, he would visit on furloughs. He rode in his uncles car once a week. He did not launder his uncles clothes. Beginning in 1973, George worked at Abexs Winchester, Virginia plant. Kesner, however, was never employed by Abex and never once visited the Winchester plant, located over 40 miles from Romney across the state line.

Kesner never worked with or around any Abex brake linings or other product made at that plant. The Winchester plant manufactured automotive brake linings, some of which incorporated chrysotile asbestos. Beginning in the early to mid-1970s, 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 packaging of its brake lining products. Shortly after he began working at Abex, George came to understand that exposure to asbestos could be a health hazard. George agreed the Winchester plant had showers available for employees to use; he also understood he could change clothes before going home. Though he rarely did change his clothes before going home, he always dusted himself off as best he could and upon arriving home he always removed his shoes before entering the home. His clothes would be a little bit dusty.

Overall, George liked Abex and spent four decades working at the Winchester plant. In early 2011, Kesner was diagnosed with peritoneal mesothelioma.

The complaint asserted that Kesner himself handled or used the defendants asbestos-containing products at various times during his life, 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 during the regular and intended uses 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 owners to family members of workers. Whether Campbell precluded imposing a duty of care on Abex for take-home exposures came to the trial court in the form of a nonsuit motion. On June 28, 2012, the trial court granted Abexs motion, ruling that Abex owed no duty to Kesner for any exposure to asbestos through page 252contact with an employee of the Abex plant in Winchester, Virginia. Kesner timely filed a notice of appeal and a petition for writ of mandamus. On May 15, 2014, the Court of Appeal issued its opinion, reversing the judgment.

Kesner breaks new ground in holding that employers owe a duty of care to unknown third persons who may come into 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 off premises by employees. The courts in a majority of those jurisdictions have found no duty should be imposed for such take-home or secondary exposures. The majority view includes employers or property owners, though most cases have involved employers. The courts are also wary of the consequences of extending employers liability too far, especially when asbestos litigation has already rendered almost one hundred corporations bankrupt.

The court stressed the importance of extensive contact between the person developing the illness and the person upon whose body the asbestos came home. Proof the defendant knew of the danger and took no steps to prevent the danger from being realized is also important. However, these are all questions of fact, precluding a summary judgment motion.

Until the Supreme Court says otherwise, the rule in California will be that take-home exposure claims may succeed against the workers employer but will not prevail against the premises owner.

CRITICAL THINKING

To consider how important the facts are in shaping legal reasoning, ask yourself: what facts would move the court in the direction of finding that no duty is owed to those who interact with an employee exposed to harmful materials? Now, switch gears. What facts, were they true, would move the court in the direction of finding that a duty of care is owed someone who interacts with an employee exposed to harmful materials?

ETHICAL DECISION MAKING

One of the difficulties in thinking about ethical business conduct is distinguishing between the interests of those stakeholders who are in court and those who are affected by the business behavior but are not represented in the legal proceedings.