Secondary Injuries – Kesner v. Superior Court

An employer is typically liable for work-related injuries sustained by employees. For this reason, the state of California requires all employers to carry workers’ compensation insurance to cover their employees’ possible work-related injuries. In some cases, though, a third person may sustain injury indirectly from the employee’s job. This third party could be a family member or other person the employee comes into contact with regularly. Where does a employer’s liability end?  This issue was explored in a case called Kesner v. Superior Court.

In Kesner, the plaintiff was the nephew of the employee of the defendant, Abex. The plaintiff was diagnosed in February 2011 with perotineal mesothelioma. His claims against Abex were based on the fact that his uncle worked at the Abex company for many years. During those years, the plaintiff was a frequent visitor at his uncle’s home. His uncle would come home from his job at Abex covered in asbestos dust. The uncle would then play with the defendant, and sometimes sleep near him. The plaintiff alleged that the exposure to the asbestos dust lead to him eventually contracting mesothelioma.

Abex successfully moved to have the case against it dismissed, based on the fact that the plaintiff was not an employee, and Abex owed him no duty of care, which is an essential element of a negligence claim. However, the plaintiff appealed that dismissal and was successful. The court concluded that Abex’s duty of care did, indeed, extend to the plaintiff. The court ruled that Abex could have foreseen that the harm of the asbestos dust could have extended to the third-parties residing in an employee’s home. The court was careful to delineate the harm from a tangible injury such as mesothelioma from intangible harm such as mental anguish, which the court had previously ruled was not covered by third-party liability theories. The court also emphasized that the plaintiff in this case had extensive contact with his uncle. If the contact with the third-person was incidental or occasional, an employer would not be expected to foresee such an injury.

From this case, it is clear that an employer’s liability for work-related injury does not always end when an employee physically walks out of the work-place. Employers need to be cautious about foreseeable injuries to third-parties, such as family members, as they could ultimately be held responsible for such injuries.

If you have a question about secondary injuries, contact me today at (714) 516-8188. We can discuss your business, and review its responsibilities and possible foreseeable injuries.

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