Toxic Chemicals: Secondary Exposure

Posted in Employment Law,Products Liability,Toxic Substances on December 8, 2009

Oddone v. Superior Court, (Second District, November 24, 2009) 179 Cal. App. 4th 813, 101 Cal.Rptr.3d 867, 09 Cal. Daily Op. 14,124

A woman whose husband died as a result of a brain tumor allegedly caused by exposure to toxic chemicals at his place of employment, filed an action on her own behalf against the employer. The plaintiff alleged that her husband’s clothing absorbed chemical substances he was using in connection with his employment, and that the substances would remain on his skin, causing her to be exposed to the chemicals as a result of her contact with her husband. The plaintiff further alleged that the defendant had breached duties to warn and to safely operate its premises to protect spouses and family members of employees from coming into contact with chemical substances used at its facility, thereby causing the plaintiff to suffer secondary chemical exposure.

The trial court sustained the defendant’s demurrer without leave to amend. The court of appeal denied the plaintiff’s petition for a writ of mandate, concluding that the trial court correctly found that the defendant did not owe a duty of care to the plaintiff to protect her from secondary exposure to toxic chemicals:

“Petitioner’s attempts to state a cause of action for her own alleged injuries fall strikingly short when it comes to the third of the Rowland factors, which is the closeness of the connection between the defendant’s conduct and the injury suffered.
. . .
We do not hold that a plaintiff cannot state a cause of action for secondary exposure to toxic chemicals. Given appropriately specific allegations, this may be quite possible. But in this case, petitioner’s allegations simply do not establish any connection, much less a close connection, between the defendant’s conduct and her alleged (and unspecified) injuries.
. . .
Petitioner’s principal difficulty with these factors is that it is hard to draw the line between those nonemployee persons to whom a duty is owed and those nonemployee persons to whom no duty is 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 and too broad, as others may be in contact with the employee and spouses may not invariably be in contact with the employee. Limiting the class to those persons who have frequent and personal contact with employees leaves at large the question what “frequent” and “personal” really means. This is only a sampling of the problem.

The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is 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 the community may be considerable.

Assuming for the purposes of argument that there is some risk to nonemployee persons, in a less than perfect world it appears to make more sense to look to the nonemployee person’s insurance to cover the risk.”