A California court of appeal last week considered “the circumstances under which a legal duty of care is owed to a later-conceived child.” The ruling, however, extends beyond that specific circumstance, and is both good news and bad news for defendants in product liability and toxic tort actions.
In Elsheref v. Applied Materials, Inc., the plaintiffs alleged the child “was born with a number of birth defects allegedly caused by [his father’s workplace] exposure to toxic chemicals at AMI,” a company involved in “semiconductor, flat panel display, and solar photovoltaic products.” The defendant argued it had no duty to the child. The trial court granted summary adjudication on a number of causes of action, and the plaintiffs stipulated to dismissal as to their other claims.
No duty: The Court of Appeal in part agreed with the defense. The court “cannot find AMI assumed a duty to safeguard [the child’s] health. To conclude otherwise would mean that every employer that complies with state law requiring the protection of employee health and safety thereby assumes a duty to protect the health and safety of its employees’ family members. … [W]e decline to expose employers to such potentially boundless liability.” This holding is not limited to the “after-conceived” plaintiff, and is in line with other recent California decisions, such as Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 29 (no “duty to protect family members of workers … from secondary exposure to asbestos used during the course of … business”).
No assumption of duty: Plaintiffs argued that defendant assumed a duty “to protect its employees’ future children” because of practices common to many employers: “by employing industrial hygienists to reduce workplace hazards and nurses to provide unspecified medical services, as well as by sending [the father] for a medical examination where he completed a questionnaire containing questions about his reproductive history,” such as “such as whether his spouse ever had a miscarriage, a child with a birth defect, or difficulty becoming pregnant.”
The Elsheref court found this to fall short, and held that to accept plaintiffs’ argument “would mean that every employer that complies with state law requiring the protection of employee health and safety thereby assumes a duty to protect the health and safety of its employees’ family members. … [W]e decline to expose employers to such potentially boundless liability.”
Still strict products liability: But, said the Elsheref court, a specific duty is not an element of strict products liability. The case was therefore remanded as to that cause of action only. The plaintiffs argued on appeal that the same analysis should apply to their causes of action other than negligence – strict liability/ultrahazardous activity, willful misconduct, misrepresentation, and intentional infliction of emotional distress. The plaintiffs did not, however, advance the “no duty” argument as to those claims at the trial court, so Elsheref ruled that the argument was waived as to those claims. It seems likely that the Elsheref rationale would apply and allow claims on at least some of these theories, such as strict liability/ultrahazardous activity.
One might question, however, why does strict product liability apply at all? The exposures appear to have been during or as a result of the manufacturing process, not finished products. The duty to provide a safe workplace is different than the duty to market safe products.
The opinion is not yet final. It may be modified on rehearing or ordered de-published in whole or part. If no rehearing is granted, any petition for California Supreme Court review would be due March 7.
To read the opinion, click here.