In Corby Kuciemba, et al. v. Victory Woodworks, Inc., the Ninth Circuit Court of Appeals has asked the California Supreme Court to evaluate if employers have an enforceable legal duty to non-employees for non-employees' injury resulting from COVID-19 "take-home" exposure. The decision could resolve an open question in this influential jurisdiction for tort litigation. While the Federal District Court in Kuciemba determined there is no such duty, state courts in California have declined to rule on the issue and otherwise allowed claims to proceed (for example, see our discussion of this appellate ruling from earlier this year). The California Supreme Court's holding could impact COVID-19 pandemic-related injury cases across the country.
PLAINTIFFS' CLAIMS AND THE LOWER COURT'S DECISION
In Kuciemba, plaintiffs claim the non-employee plaintiff contracted COVID-19 from the employee plaintiff, her spouse. As a result, the non-employee plaintiff allegedly developed severe illness and was hospitalized for one month on a respirator. The employee plaintiff allegedly contracted the virus at work and brought it home. Plaintiffs blame defendant, the employer, for the non-employee plaintiff's resulting infection. Plaintiffs allege the employer violated government health orders and safety rules, and was otherwise negligent in failing to protect against the spread of infection. For example, the employer allegedly forced the employee plaintiff to work in close contact with persons the employer allegedly knew were infected with COVID-19. Plaintiffs assert counts for negligence per se based on the statutory/rule violations, general negligence, and premises liability.
Defendant employer moved to dismiss, arguing the claims are barred by the workers' compensation law because the non-employee plaintiff's infection was derivative of the employee plaintiff's. In a decision that diverges from a subsequent state court appellate ruling (see our discussion here) the U.S. District Court for the Northern District of California agreed, but granted leave to amend. In their amended complaint, plaintiffs advanced the theory that defendant is liable because it was foreseeable that an infected employee would bring the virus home, endangering members of the employee's household. The defendant employer moved to dismiss again, arguing it had no duty to protect against off-premises transmission of diseases like COVID-19. The District Court granted the motion and plaintiffs appealed to the Ninth Circuit.
THE NINTH CIRCUIT'S QUESTIONS TO THE CALIFORNIA SUPREME COURT
Evaluating the facts and District Court decision, the Ninth Circuit recognized a possible analogy to the duty to protect employees' families from asbestos fibers brought home on clothing. The Ninth Circuit recognized that the "public policy" question if such a duty should be extended to COVID-19 remains unanswered. The Ninth Circuit also questioned if the workers' compensation bar applies outside of classic derivative claims like loss of consortium. The Ninth Circuit acknowledged that an interim California appellate decision held that the workers' compensation bar did not apply in this context.
To resolve these questions, the Ninth Circuit issued an order certifying two questions to the Supreme Court of California:
- If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California's derivative injury doctrine bar the spouse's claim against the employer?
- Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?
The California Supreme Court has discretion to review or decline to review these certified questions. If accepted, the court may answer the questions in a published opinion carrying the same precedential weight as its other decisions.
Even if the court rules unfavorably to the defendant employer's position, there remain other potential defenses to claims for alleged COVID-19 "take home" liability. Employers' adherence to safety protocols may disprove negligence allegations. A plaintiff's inability to prove notice of a specific COVID-19 risk at the worksite may allow defendant to prevail. Furthermore, plaintiff may be unable to prove the employee's infection occurred at the workplace, or that the non-employee contracted COVID-19 from the employee.
The COVID-19 pandemic may lead to claims against businesses arising from on- and off-premises infection. Even if allowed to proceed, limitations on the scope of defendant's duty of care, notice, and speculative causation may be effective defense arguments. Ultimately, the evolving legal landscape will determine the defenses that may be available to businesses to defend against these claims.
The cases are Corby Kuciemba, et al. v. Victory Woodworks, Inc., case number 3:20-cv-09355-MMC, in the United States Court of Appeals for the Ninth Circuit; and Matilde Ek, et al. v. See's Candies, Inc., et al., case number 20STCV49673, in the Superior Court of the State of California, County of Los Angeles.
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