1

Filed 12/1/16

IN THE SUPREME COURT OF CALIFORNIA

CECELIA KESNER, )

) S219534

Petitioner, )

) Ct.App. 1/3 A136378

v. )

) Alameda County

THE SUPERIOR COURT OF ) Super. Ct. No. RG11578906

ALAMEDA COUNTY, )

)

Respondent; )

)

PNEUMO ABEX, LLC, )

)

Real Party in Interest. )

)

CECELIA KESNER, )

)

Plaintiff and Appellant, )

) Ct.App. 1/3 A136416

v. )

) Alameda County

PNEUMO ABEX, LLC, ) Super. Ct. No. RG11578906 

)

Defendant and Respondent; )

)

JOSHUA HAVER, et al. )

) S219919

Plaintiffs and Appellants, )

) Ct.App. 2/5 B246527

v. )

)

BNSF RAILWAY COMPANY, ) Los Angeles County

) Super. Ct. No. BC435551

Defendant and Respondent. )

____________________________________)
2

These two cases ask whether employers or landowners owe a duty of care 

to prevent secondary exposure to asbestos. Such exposure, sometimes called 

domestic or take-home exposure, occurs when a worker who is directly exposed to 

a toxin carries it home on his or her person or clothing, and a household member is 

in turn exposed through physical proximity or contact with that worker or the 

worker‘s clothing. Plaintiffs in these actions for personal injury and wrongful 

death allege that take-home exposure to asbestos was a contributing cause to the 

deaths of Lynne Haver and Johnny Kesner, and that the employers of Lynne‘s 

former husband and Johnny‘s uncle had a duty to prevent this exposure. 

Defendants argue that users of asbestos have no duty, either as employers or as 

premises owners, to prevent nonemployees who have never visited their facilities 

from being exposed to asbestos used in defendants‘ business enterprises. 

After the trial and appellate courts in these two cases reached varying 

conclusions as to the existence of this duty, we granted review and consolidated 

both cases for oral argument and decision to address the following questions: 

Does an employer that uses asbestos in the workplace have a duty of care to 

protect employees‘ household members from exposure to asbestos through off-site 

contact with employees who carry asbestos fibers on their work clothing, tools, 

vehicles, or persons? How, if at all, does this duty differ when the plaintiff states a 

claim for premises liability rather than general negligence? If an employer or 

premises owner has such a duty, is that duty limited to immediate family members 

or to members of the employee‘s household? Or does the duty extend to visitors, 

guests, or other persons with whom the employee may come into contact?

We hold that the duty of employers and premises owners to exercise 

ordinary care in their use of asbestos includes preventing exposure to asbestos 
3

carried by the bodies and clothing of on-site workers. Where it is reasonably 

foreseeable that workers, their clothing, or personal effects will act as vectors 

carrying asbestos from the premises to household members, employers have a duty 

to take reasonable care to prevent this means of transmission. This duty also 

applies to premises owners who use asbestos on their property, subject to any 

exceptions and affirmative defenses generally applicable to premises owners, such 

as the rules of contractor liability. Importantly, we hold that this duty extends only 

to members of a worker‘s household. Because the duty is premised on the 

foreseeability of both the regularity and intensity of contact that occurs in a 

worker‘s home, it does not extend beyond this circumscribed category of potential 

plaintiffs. 

I.

Johnny Blaine Kesner, Jr., was diagnosed with perotineal mesothelioma in 

February 2011. (Because this case involves family members with the same last 

name, we use individuals‘ first names for clarity.) Johnny filed suit against a 

number of defendants he believed were responsible for exposing him to asbestos 

and causing his mesothelioma. These defendants included Pneumo Abex, LLC 

(Abex). Johnny‘s uncle, George Kesner, worked at the Abex plant in Winchester, 

Virginia, for much of George‘s life, where George was exposed to asbestos fibers 

released in the manufacture of brake shoes. According to George, Johnny spent an 

average of three nights per week at his uncle‘s home from 1973 to 1979. When 

Johnny was at his uncle‘s home, he would sometimes sleep near George or 

roughhouse with George while George was wearing his work clothes. Johnny 

alleged that his exposure to asbestos dust from the Abex plant, carried home on his 

uncle‘s clothes, contributed to his contracting mesothelioma. Johnny died in 

December 2014, after the Court of Appeal issued its judgment in this matter. 

Cecelia Kesner is his successor in interest.
4

Lynne Haver was diagnosed with mesothelioma in March 2008 and died in 

April 2009. Her children, Joshua Haver, Christopher Haver, Kyle Haver, and 

Jennifer Morris (the Havers), filed a wrongful death and survival action alleging 

negligence, premises owner and contractor liability, and loss of consortium. They 

allege that Lynne‘s exposure to asbestos by way of her former husband, Mike 

Haver, caused her cancer and death. Mike was employed by the Atchison, 

Topeka, and Santa Fe Railway, a predecessor of BNSF Railway Company 

(BNSF), from July 1972 through 1974. In his position as fireman and hostler for 

BNSF, Mike was exposed to asbestos from pipe insulation and other products. 

The Havers allege that Mike carried home these asbestos fibers on his body and 

clothing, and that Lynne was exposed through contact with him and his clothing, 

tools, and vehicle after she began living with him in 1973.

Mesothelioma is a cancer of the chest and abdomen closely associated with 

asbestos exposure. Asbestos can cause disease when an individual inhales or 

ingests microscopic asbestos fibers that have been released into the air. Some 

forms of asbestos, termed friable, release such fibers upon slight contact; 

nonfriable asbestos may release fibers if cut, sawed, or broken. (29 C.F.R. 

§ 1926.1101, appen. H (2016).) The Havers and Kesner allege that BNSF and 

Abex, through the use or manufacture of asbestos-containing products, created a 

risk of harm to the household members of their employees by failing to exercise 

reasonable care in their use of asbestos-containing materials. 

Neither the Havers‘ nor Kesner‘s suit reached a jury. Abex moved for 

nonsuit at the beginning of trial in light of Campbell v. Ford Motor Co. (2012) 206 

Cal.App.4th 15, 34 (Campbell), which held that ―a property owner has no duty to 

protect family members of workers on its premises from secondary exposure to 

asbestos used during the course of the property owner‘s business.‖ The trial court 

granted this motion and entered a final judgment in Abex‘s favor on the ground 
5

that Abex did not owe a duty to Kesner to prevent his exposure to asbestos. 

Kesner both appealed and petitioned the Court of Appeal for a writ of mandate. 

The Court of Appeal consolidated the appeal and writ proceeding, and reversed 

the trial court‘s grant of a nonsuit.

After the Havers filed suit, BNSF demurred to the complaint, also relying 

on Campbell. The trial court sustained the demurrer; the Havers appealed. The 

Court of Appeal held that Campbell correctly rejected the claim that premises 

owners owe a duty of care to household members who suffer take-home exposure 

to asbestos, and distinguished the Court of Appeal‘s decision in Kesner on the 

ground that Kesner‘s claim alleged negligence in the manufacture of brake pads, 

whereas the Havers‘ claim rested on a theory of premises liability. 

We granted review in both cases and consolidated them for argument and 

decision in order to determine whether an employer has a duty to members of an 

employee‘s household to prevent take-home asbestos exposure on a premises 

liability or negligence theory.

II.

A plaintiff in any negligence suit must demonstrate ―  ̳a legal duty to use 

due care, a breach of such legal duty, and [that] the breach [is] the proximate or 

legal cause of the resulting injury.‘ ‖ (Beacon Residential Community Assn. v. 

Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573 (Beacon), quoting 

United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.) 

Here we are tasked solely with deciding whether Abex or BNSF had a legal duty 

to prevent the injuries alleged by Kesner and the Havers. 

―Duty is a question of law for the court, to be reviewed de novo on appeal.‖ 

(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).) ―California 

law establishes the general duty of each person to exercise, in his or her activities, 

reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)‖ (Id. at 
6

p. 768.) Civil Code section 1714, subdivision (a) provides in relevant part: 

―Everyone is responsible, not only for the result of his or her willful acts, but also 

for an injury occasioned to another by his or her want of ordinary care or skill in 

the management of his or her property or person, except so far as the latter has, 

willfully or by want of ordinary care, brought the injury upon himself or herself.‖ 

(All subsequent statutory references are to the Civil Code unless otherwise 

indicated.) ―  ̳Courts . . . invoke[] the concept of duty to limit generally ―the 

otherwise potentially infinite liability which would follow from every negligent 

act . . . .‖ ‘ ‖ (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 (Bily), 

quoting Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750.) The 

conclusion that a defendant did not have a duty constitutes a determination by the 

court that public policy concerns outweigh, for a particular category of cases, the 

broad principle enacted by the Legislature that one‘s failure to exercise ordinary 

care incurs liability for all the harms that result. ―The history of the concept of 

duty in itself discloses that it is not an old and deep-rooted doctrine but a legal 

device of the latter half of the nineteenth century designed to curtail the feared 

propensities of juries toward liberal awards.‖ (Dillon v. Legg (1968) 68 Cal.2d 

728, 734.) As a result, ―in the absence of a statutory provision establishing an 

exception to the general rule of Civil Code section 1714, courts should create one 

only where ―  ̳clearly supported by public policy.‘ ‖ (Cabral, supra, 51 Cal.4th at 

p. 771, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 112 (Rowland).) 

In determining whether policy considerations weigh in favor of such an 

exception, we have said the most important factors are ―the foreseeability of harm 

to the plaintiff, the degree of certainty that the plaintiff suffered injury, the 

closeness of the connection between the defendant‘s conduct and the injury 

suffered, the moral blame attached to the defendant‘s conduct, the policy of 

preventing future harm, the extent of the burden to the defendant and 
7

consequences to the community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of insurance for the 

risk involved.‖ (Rowland, supra, 69 Cal.2d at p. 113.) Because Civil Code 

section 1714 establishes a general duty to exercise ordinary care in one‘s 

activities, which includes the use of asbestos in one‘s business or on one‘s 

premises, we rely on these factors not to determine ―whether a new duty should be 

created, but whether an exception to Civil Code section 1714 . . . should be 

created.‖ (Cabral, supra, 51 Cal.4th at p. 783.) 

Because a judicial decision on the issue of duty entails line-drawing based 

on policy considerations, ―the Rowland factors are evaluated at a relatively broad 

level of factual generality. . . . [¶] In applying the . . . Rowland factors, . . . we 

have asked not whether they support an exception to the general duty of 

reasonable care on the facts of the particular case before us, but whether carving 

out an entire category of cases from that general duty rule is justified by clear 

considerations of policy. . . . [¶] By making exceptions to Civil Code section 

1714‘s general duty of ordinary care only when foreseeability and policy 

considerations justify a categorical no-duty rule, we preserve the crucial 

distinction between a determination that the defendant owed the plaintiff no duty 

of ordinary care, which is for the court to make, and a determination that the 

defendant did not breach the duty of ordinary care, which in a jury trial is for the 

jury to make.‖ (Cabral, supra, 51 Cal.4th at p. 772; see Rest.3d Torts, Liability 

for Physical and Emotional Harm, § 7, com. a, p. 78 [―No-duty rules are 

appropriate only when a court can promulgate relatively clear, categorical, brightline rules of law applicable to a general class of cases.‖].)

In this respect, duty differs from the other elements of a tort. Breach, 

injury, and causation must be demonstrated on the basis of facts adduced at trial, 

and a jury‘s determination of each must take into account the particular context in 
8

which any act or injury occurred. Analysis of duty occurs at a higher level of 

generality. In Cabral, we held it was irrelevant to the question of duty whether the 

defendant had ―parked 16 feet from the outermost traffic lane, rather than six feet 

or 26 feet; that parking for emergencies was permitted in the dirt area he chose; 

that [plaintiff] likely left the highway because he fell asleep or because of some 

unknown adverse health event, rather than from distraction or even intoxication.‖ 

(Cabral, supra, 51 Cal.4th at p. 774.) Each of these factual circumstances went to 

elements other than duty, such as breach or proximate causation. 

Here, because ―the general duty to take ordinary care in the conduct of 

one‘s activities‖ applies to the use of asbestos on an owner‘s premises or in an 

employer‘s manufacturing processes, ―the issue is also properly stated as whether 

a categorical exception to that general rule should be made‖ exempting property 

owners and employers from potential liability to individuals who were exposed to 

asbestos by way of employees carrying it on their clothes or person. (Cabral, 

supra, 51 Cal.4th at p. 774, citing § 1714, subd. (a).) In answering this question, 

our task is not to decide whether Kesner or the Havers have proven that asbestos 

from Abex or BNSF actually and foreseeably reached Johnny Kesner or Lynne 

Haver, or whether Abex‘s or BNSF‘s asbestos contributed to the disease that 

Johnny or Lynne suffered, or whether Abex or BNSF had adequate procedures in 

place to prevent take-home exposure. Our task is to determine whether household 

exposure is categorically unforeseeable and, if not, whether allowing the 

possibility of liability would result in such significant social burdens that the law 

should not recognize such claims. As noted, we will not ―carv[e] out an entire 

category of cases from th[e] general duty rule‖ of section 1714, subdivision (a), 

unless doing so ―is justified by clear considerations of policy.‖ (Cabral, at 

p. 772.)
9

III.

The Rowland factors fall into two categories. Three factors —

foreseeability, certainty, and the connection between plaintiff and defendant —

address the foreseeability of the relevant injury, while the other four — moral 

blame, preventing future harm, burden, and availability of insurance — take into 

account public policy concerns that might support excluding certain kinds of 

plaintiffs or injuries from relief. As explained below, we conclude that the 

exposure of household members to take-home asbestos is generally foreseeable 

and that BNSF and Abex have not shown that categorically barring take-home 

claims is justified by clear considerations of policy. Accordingly, Abex and BNSF 

owed plaintiffs a duty of ordinary care to prevent take-home exposure.

A.

The most important factor to consider in determining whether to create an 

exception to the general duty to exercise ordinary care articulated by section 1714 

is whether the injury in question was foreseeable. (Tarasoff v. Regents of Univ. of 

California (1976) 17 Cal.3d 425, 434 (Tarasoff).) With respect to this factor, we 

conclude that it was foreseeable that people who work with or around asbestos 

may carry asbestos fibers home with them and expose members of their 

household. This factor weighs in favor of the existence of a duty.

―[A]s to foreseeability, . . . the court‘s task in determining duty  ̳is not to 

decide whether a particular plaintiff‘s injury was reasonably foreseeable in light 

of a particular defendant‘s conduct, but rather to evaluate more generally whether 

the category of negligent conduct at issue is sufficiently likely to result in the kind 

of harm experienced that liability may appropriately be imposed . . . .‘ ‖ (Cabral, 

supra, 51 Cal.4th at p. 772; accord, Parsons v. Crown Disposal Co. (1997) 15 

Cal.4th 456, 476 (Parsons); Jackson v. Ryder Truck Rental, Inc. (1993) 16 

Cal.App.4th 1830, 1839.) For purposes of duty analysis, ―  ̳foreseeability is not to 
10

be measured by what is more probable than not, but includes whatever is likely 

enough in the setting of modern life that a reasonably thoughtful [person] would 

take account of it in guiding practical conduct.‘. . . [I]t is settled that what is 

required to be foreseeable is the general character of the event or harm — e.g., 

being struck by a car while standing in a phone booth — not its precise nature or 

manner of occurrence.‖ (Bigbee v. Pac. Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57–

58 (Bigbee).)

A reasonably thoughtful person making industrial use of asbestos during 

the time periods at issue in this case (i.e., the mid-1970s) would take into account 

the possibility that asbestos fibers could become attached to an employee‘s 

clothing or person, travel to that employee‘s home, and thereby reach other 

persons who lived in the home. (See Olivo v. Owens-Illinois, Inc. (N.J. 2006) 895 

A.2d 1143, 1149 (Olivo) [―It requires no leap of imagination to presume that . . . 

[the worker‘s] spouse would be handling [the worker‘s] clothes in the normal and 

expected process of laundering them so that the garments could be worn to work 

again.‖].) It is a matter of common experience and knowledge that dust or other 

substances may be carried from place to place on one‘s clothing or person, as 

anyone who has cleaned an attic or spent time in a smoky room can attest. 

Defendants would not need to know ―the precise . . . manner‖ that exposure 

occurred (i.e., that Lynne laundered Mike‘s clothing or that George roughhoused 

with his nephew Johnny) in order to recognize the general risk posed by workers 

leaving an area with airborne dust-based toxins and then coming into contact with 

members of their households. (Bigbee, supra, 34 Cal.3d at p. 58.)

Moreover, at the time George Kesner and Mike Haver worked for 

defendants, broadly applicable regulations identified the potential health risks of 

asbestos traveling outside a worksite. In June 1972, the federal Occupational 

Safety and Health Administration (OSHA) published its first permanent 
11

regulations for employers using asbestos. (OSHA, Standard for Exposure to 

Asbestos Dust, 37 Fed. Reg. 11320 (June 7, 1972) (OSHA Standard), amending 

29 C.F.R. § 1910 et seq.; for current regulation, see 29 CFR § 1910.0001 et seq. 

(2016); see also Industrial Union Department, AFL-CIO v. Hodgson (D.C.Cir. 

1974) 499 F.2d 467, 471–472 (Industrial Union).) In addition to setting a ceiling 

for employee exposure to airborne asbestos, the OSHA Standard required 

employers to take precautions for employees and others who may be exposed to 

concentrations of airborne asbestos above that ceiling. (OSHA Standard, supra, 

37 Fed. Reg. 11320, adding 29 C.F.R. former § 1910.93a.) Some precautions 

contemplated asbestos traveling within a worksite. For example, the regulations 

required employers to post signs in all areas of high airborne asbestos 

concentrations ―at such a distance from such a location so that an employee may 

read the signs and take necessary protective steps before entering the area marked 

by the signs.‖ (Id., 37 Fed. Reg. 11321.) Others protected nonemployees from 

asbestos traveling outside of a worksite on employees‘ clothing. Under the 

regulations, employers were required to provide their asbestos-exposed employees 

with special clothing and changing rooms. (Ibid.) Employers were required to 

inform launderers of asbestos-exposed clothing of the asbestos contamination and 

to transport asbestos-exposed clothing ―in sealed impermeable bags, or other 

closed, impermeable containers‖ that were appropriately labeled as containing 

asbestos. (Ibid.) Moreover, employers were required to provide ―two separate 

lockers or containers for each employee, so separated or isolated as to prevent 

contamination of the employee‘s street clothes from his work clothes.‖ (Ibid.)

Well before OSHA issued the 1972 standard, the federal government and 

industrial hygienists recommended that employers take measures to prevent 

employees who worked with toxins from contaminating their families by changing 

and showering before leaving the workplace. In 1952, the United States 
12

Department of Labor‘s standards for federal contractors provided that ―[w]orkers 

who handle or are exposed to harmful materials in such a manner that contact of 

work clothes with street clothes will communicate to the latter the harmful 

substances . . . should be provided with facilities which will prevent this contact.‖ 

(U.S. Dept. of Labor, Safety and Health Standards For Contractors performing 

Federal Supply Contracts under the Walsh-Healey Public Contracts Act (1952) pt. 

III. B. 5 (d), 25.) The International Labour Office‘s Standard Code of Industrial 

Hygiene (Geneva 1934) recommended washing accommodation and cloakrooms 

for workers ―[i]n dusty trades.‖ (Id., art. 4, std. 40, at p. 15.) It was also known 

that take-home exposure to asbestos could cause serious injury; as early as 1965, 

scholarly journals documented fatal cases of mesothelioma where patients‘ only 

exposure was through living with an asbestos worker. (See Newhouse & 

Thompson, Mesothelioma of Pleura and Peritoneum Following Exposure to 

Asbestos in the London Area (1965) vol. 22, No. 4 Brit. J. Indus. Med. 261, 264.)

Defendants argue that there was no scientific consensus regarding the risks 

of take-home asbestos during the relevant time periods here. But defendants cite 

no authority requiring a scientific consensus to establish foreseeability in the 

context of duty analysis. (Cf. Tarasoff, supra, 17 Cal.3d at pp. 437–438 [rejecting 

the argument that because the state of scientific evidence did not enable therapists 

to accurately predict whether patients will act violently, therapists have no duty to 

third parties for their patients‘ violent conduct, and instead holding that therapists 

must ―exercise  ̳that reasonable degree of skill, knowledge, and care ordinarily 

possessed and exercised by members of [that professional specialty] under similar 

circumstances‘ ‖].) The OSHA Standard — informed by a four-day public 

hearing ―at which various representatives and experts appeared on behalf of 

interested parties,‖ and by recommendations from the National Institute for 

Occupational Safety and Health and from an Advisory Committee on Asbestos 
13

Standards composed of two employer and two labor representatives, plus a 

representative of the public (Industrial Union, supra, 499 F.2d at p. 470; see id. at 

p. 470, fn. 4) — observed that ―[n]o one has disputed that exposure to asbestos of 

high enough intensity and long enough duration is causally related to asbestosis 

and cancers. The dispute is as to the determination of a specific level below which 

exposure is safe.‖ (OSHA Standard, supra, 37 Fed. Reg. 11318.) After 

acknowledging conflicting evidence, the OSHA Standard said: ―In view of the 

undisputed grave consequences from exposure to asbestos fibers, it is essential that 

the exposure be regulated now, on the basis of the best evidence available now, 

even though it may not be as good as scientifically desirable.‖ (Ibid.) The risks of 

exposure that prompted OSHA to require precautions against take-home exposure 

were sufficient to provide notice of the reasonable foreseeability of such harm. 

Indeed, our research reveals no reported case in which an employer or industry 

group challenged the 1972 OSHA Standard for lack of substantial evidence.

The second Rowland factor, the degree of certainty that the plaintiff 

suffered injury, ―has been noted primarily, if not exclusively, when the only 

claimed injury is an intangible harm such as emotional distress. ‖ (Bily, supra, 3 

Cal.4th at p. 421.) Courts have occasionally included under this factor concerns 

about the existence of a remedy. (See Cabral, supra, 51 Cal.4th at p. 781, fn. 9.) 

Cecelia Kesner and the Havers allege that Johnny Kesner and Lynne Haver died as 

a result of mesothelioma; their injuries are certain and compensable under the law.

The third Rowland factor, ―  ̳the closeness of the connection between the 

defendant‘s conduct and the injury suffered[,]‘ [citation] is strongly related to the 

question of foreseeability itself.‖ (Cabral, supra, 51 Cal.4th at p. 779.) BNSF 

argues that the connection between defendants‘ conduct and plaintiffs‘ illness is 

―indirect and attenuated‖ because it ―relies on the intervening acts of a defendant‘s 
14

employee to transmit the alleged asbestos risk to the plaintiff.‖ The ―closeness‖ 

factor, BNSF argues, ―weighs strongly against the imposition of a legal duty.‖ 

―It is well established . . . that one‘s general duty to exercise due care 

includes the duty not to place another person in a situation in which the other 

person is exposed to an unreasonable risk of harm through the reasonably 

foreseeable conduct (including the reasonably foreseeable negligent conduct) of a 

third person.‖ (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) 

In determining whether one has a duty to prevent injury that is the result of third 

party conduct, the touchstone of the analysis is the foreseeability of that 

intervening conduct. (See Bigbee, supra, 34 Cal.3d at p. 58, quoting Rest.2d 

Torts, § 449.) The relevant intervening conduct here — that workers returned

home at the end of the day and, without adequate precautions, would bring 

asbestos dust home — is entirely foreseeable. An intervening third party‘s actions 

that are ―themselves derivative of defendants‘ allegedly negligent conduct . . . do 

not diminish the closeness of the connection between defendant‘s conduct and 

plaintiff‘s injury for purposes of determining the existence of a duty of care.‖ 

(Beacon, supra, 59 Cal.4th at p. 583.) An employee‘s role as a vector in bringing 

asbestos fibers into his or her home is derived from the employer‘s or property 

owner‘s failure to control or limit exposure in the workplace.

In support of its claim that Lynne Haver‘s injury had only an attenuated 

connection to defendants‘ use of asbestos, BNSF cites cases involving car 

accidents in which the plaintiffs attempted to hold the defendants liable for 

creating the situation in which they were hit by a third party driver. But each of 

those cases turned on either the lack of foreseeability of the intervening negligent 

conduct or the lack of relationship between the intervening conduct and the 

defendant‘s negligence. (See Hoff v. Vacaville Unified School District (1998) 19 

Cal.4th 925, 936 [―school personnel who neither know nor reasonably should 
15

know that a particular student has a tendency to drive recklessly owe no duty to 

off-campus nonstudents‖]; Richards v. Stanley (1954) 43 Cal.2d 60, 65 [where 

―the defendant has no reason to believe that the third person is incompetent to 

manage‖ property, the defendant has no duty to prevent negligent use of lent or 

stolen property]; Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 782 [―there is no 

logical cause and effect relationship between that negligence and the harm 

suffered by decedent except for the fact that it placed decedent in a position to be 

acted upon by the negligent third party‖].) Where there is a logical causal 

connection between the defendant‘s negligent conduct and the intervening 

negligence of a third party driver, making the intervening negligence foreseeable, 

we have found both a duty and liability. (See Weirum v. RKO General, Inc. 

(1975) 15 Cal.3d 40 [affirming a wrongful death judgment against a radio 

broadcaster where radio contest that awarded teen drivers for being the first to 

reach a disc jockey driving around the area induced reckless driving that killed 

decedent].)

In sum, BNSF‘s reliance on our cases involving third party drivers is 

unavailing. The gravamen of plaintiffs‘ claims is that defendants failed to mitigate 

known risks associated with the use of asbestos. Increased risk of mesothelioma is 

a characteristic harm that makes the use of asbestos-containing materials 

unreasonably dangerous in the absence of protective measures. An employee‘s 

return home at the end of the workday is not an unusual occurrence, but rather a 

baseline assumption that can be made about employees‘ behavior. The risk of 

take-home exposure to asbestos ―  ̳is likely enough in the setting of modern life 

that a reasonably thoughtful [employer or property owner] would take account of 

it in guiding practical conduct‘ ‖ in the workplace. (Bigbee, supra, 34 Cal.3d at 

p. 57.) Moreover, the intervening conduct leading to this exposure is predictable 
16

and derivative of the alleged misconduct, namely, failure to control the movement 

of asbestos fibers. The foreseeability factors weigh in favor of finding a duty here.

B.

―[F]oreseeability alone is not sufficient to create an independent tort duty. 

 ̳ ― . . . [The] existence [of a duty] depends upon the foreseeability of the risk and a 

weighing of policy considerations for and against imposition of liability.‖ ‘ ‖ 

(Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) These policy considerations 

include ―  ̳the moral blame attached to the defendant‘s conduct, the policy of 

preventing future harm, the extent of the burden to the defendant and 

consequences to the community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of insurance for the 

risk involved‘ (Rowland, supra, 69 Cal.2d at p. 113).‖ (Cabral, supra, 51 Cal.4th 

at p. 781.) ―A duty of care will not be held to exist even as to foreseeable injuries 

. . . where the social utility of the activity concerned is so great, and avoidance of 

the injuries so burdensome to society, as to outweigh the compensatory and costinternalization values of negligence liability. [Citations.]‖ (Merrill v. Navegar, 

Inc. (2001) 26 Cal.4th 465, 502.) We first address prevention of future harm, 

moral blame, and availability of insurance, and then discuss the burden that a 

finding of duty here would impose on both defendants.

―The overall policy of preventing future harm is ordinarily served, in tort 

law, by imposing the costs of negligent conduct upon those responsible.‖ (Cabral, 

supra, 51 Cal.4th at p. 781.) In general, internalizing the cost of injuries caused by 

a particular behavior will induce changes in that behavior to make it safer. That 

consideration may be ―outweighed, for a category of negligent conduct, by laws or 

mores indicating approval of the conduct or by the undesirable consequences of 

allowing potential liability.‖ (Id. at p. 782.)
17

Defendants contend that the future risk of the particular injury at issue —

mesothelioma resulting from exposure to airborne asbestos fibers — has largely 

been eliminated through extensive regulation and reduced asbestos usage. In light 

of state and federal regulations that currently mandate extensive precautions (see, 

e.g., Lab. Code, §§ 9000–9052; 29 C.F.R. § 1910.1001 (2016) [federal regulations 

setting forth detailed protective measures and limits for occupational exposure to 

asbestos]; 40 C.F.R. § 763.165 (2015) [banning the import and manufacture of 

certain asbestos-containing products]), imposing a duty to prevent secondary 

exposure is unlikely to alter the behavior of current asbestos-using businesses. 

Defendants thus argue there is little prospective benefit to finding a duty here.

But whether or how the imposition of liability would affect the conduct of 

current asbestos users, our duty analysis looks to the time when the duty was 

assertedly owed. Just as we look to the availability of scientific studies to assess 

the foreseeability of injury due to take-home asbestos exposure at the time Lynne 

and Johnny were exposed, the relevant question for this factor is whether imposing 

tort liability in the 1970s would have prevented future harm from that point. The 

numerous regulations cited by BNSF suggest that legislatures and agencies readily 

adopted the premise that imposing liability would prevent future harm. And 

BNSF points to no countervailing state policy promoting the use of asbestos to 

outweigh our general presumption in favor of incentivizing reasonable 

preventative measures. (See Cabral, supra, 51 Cal.4th at p. 782.) Rather, as the 

regulations cited above make clear, there is a strong public policy limiting or 

forbidding the use of asbestos. 

As for moral blame, this factor can be difficult to assess in the absence of a 

factual record. (See Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal.4th 

1066, 1078.) We have previously assigned moral blame, and we have relied in 

part on that blame in finding a duty, in instances where the plaintiffs are 
18

particularly powerless or unsophisticated compared to the defendants or where the 

defendants exercised greater control over the risks at issue. (See Beacon, supra, 

59 Cal.4th at p. 586 [―Because of defendants‘ unique and well-compensated role 

in the Project as well as their awareness that future homeowners would rely on 

their specialized expertise in designing safe and habitable homes, significant moral 

blame attaches to defendants‘ conduct.‖]; Peterson v. San Francisco Community 

College Dist. (1984) 36 Cal.3d 799, 814 [failure to take intervening action to 

improve safety of facilities ―if established, also indicate[s] that there is moral 

blame attached to the defendants‘ failure to take steps to avert the foreseeable 

harm‖].) Similar considerations apply here, as commercial users of asbestos 

benefitted financially from their use of asbestos and had greater information and 

control over the hazard than employees‘ households. Negligence in their use of 

asbestos is morally blameworthy, and this factor weighs in favor of finding a duty.

As for the availability of insurance, Abex contends that insurance for 

asbestos-related injuries is no longer widely available, as the insurance industry 

has revised its standard commercial general liability policies to exclude asbestos. 

But the relevant insurance policies are those that were available to defendants at 

the time of exposure, even if the availability of such policies declined along with 

the dramatic drop in the use of asbestos.

Among those defendants that had purchased suitable coverage, BNSF and 

Abex contend, the scope of potential liability for take-home exposure would 

exceed policy limits. We do not speculate on, and defendants do not offer, the 

precise policy terms or estimates of the number of take-home claims to support 

such an empirical conclusion. At the level of generality appropriate to duty 

analysis, it is not obvious that secondary asbestos exposure poses greater 

uncertainty in terms of potential claimants and total liability than, say, the 

negligent release of chemicals into the air or negligent contamination of 
19

groundwater. More to the point, BNSF argues that even if defendants could limit 

the size of judgments against them by defeating plaintiffs‘ claims of causation or 

injury, ―the burdens of participating in discovery and defending a case up to and 

through a jury trial‖ would overwhelm insurers and defendants alike. Whatever 

the ultimate liability of defendants for take-home asbestos exposure, their concern 

is that the magnitude and uncertainty of potential liability make insuring against it 

impossible.

At its core, this argument regarding the availability and cost of insurance 

merges with the main policy consideration urged by Abex and BNSF: Allowing 

tort liability for take-home asbestos exposure would dramatically increase the 

volume of asbestos litigation, undermine its integrity, and create enormous costs 

for the courts and community. The already ―elephantine mass of asbestos cases‖ 

would further expand. (Ortiz v. Fibreboard Corp. (1999) 527 U.S. 815, 821; see 

Amchem Products, Inc. v. Windsor (1997) 521 U.S. 591, 598.) Bringing such 

cases to trial would entail ―inherently tricky fact-finding,‖ Abex contends, against 

a backdrop of fading memories, reorganized and successor corporations, lost 

records, and evolving regulatory standards informing the particular duty in any 

given case. Moreover, defendants argue, recognizing a duty would permit 

sufferers of mesothelioma or asbestosis who may have also been exposed in their 

own workplaces to sue their family members‘ employers as well as their own. 

Such suits would target contributors to a plaintiff‘s total asbestos exposure on the 

basis of relative solvency instead of relative fault, with joint and several liability 

resulting in significant judgments against relatively small contributors. 

In evaluating defendants‘ concerns, we begin by observing that the relevant 

burden in the analysis of duty is not the cost to the defendants of compensating 

individuals for past negligence. To the extent defendants argue that the costs of 

paying compensation for injuries that a jury finds they have actually caused would 
20

be so great that we should find no duty to prevent those injuries, the answer is that 

shielding tortfeasors from the full magnitude of their liability for past wrongs is 

not a proper consideration in determining the existence of a duty. Rather, our duty 

analysis is forward-looking, and the most relevant burden is the cost to the 

defendants of upholding, not violating, the duty of ordinary care. (See, e.g., 

Parsons, supra, 15 Cal.4th at p. 473 [assessing the behavior changes that 

machinery operators and local landowners would have to make to prevent 

spooking horses with loud noises as the relevant ―burden to the defendant and 

consequences to the community‖ under Rowland]; Isaacs v. Huntington Memorial 

Hospital (1985) 38 Cal.3d 112, 131 [―The foreseeability of an assault was high in 

comparison to the minimal burden on the hospital to take security measures 

. . . .‖].) Neither the Court of Appeal in Haver nor defendants suggest that 

preventing Lynne‘s or Johnny‘s exposure to asbestos was unreasonably expensive 

to defendants or that the costs would have impeded defendants‘ ability to carry out 

an activity with significant social utility. In general, preventing injuries to 

workers‘ household members due to asbestos exposure does not impose a greater 

burden than preventing exposure and injury to the workers themselves. 

Defendants do not claim that precautions to prevent transmission via employees to 

off-site individuals — such as changing rooms, showers, separate lockers, and onsite laundry — would unreasonably interfere with business operations.

Defendants further argue that a finding of duty here will result in increased 

insurance costs and tort damages, and ultimately impose a burden on consumers 

and the community. But the tort system contemplates that the cost of an injury, 

instead of amounting to a ―needless‖ and ―overwhelming misfortune to the person 

injured,‖ will instead ―be insured by the [defendant] and distributed among the 

public as a cost of doing business.‖ (Escola v. Coca Cola Bottling Co. (1944) 24 

Cal.2d 453, 462 (conc. opn. of Traynor, J.).) Such allocation of costs serves to 
21

ensure that those ―best situated‖ to prevent such injuries are incentivized to do so. 

(Ibid.; see generally Calabresi, The Cost of Accidents: A Legal and Economic 

Analysis (1970).) Employers and premises owners are generally better positioned 

than their employees or members of their employees‘ households to know of the 

dangers of asbestos and its transmission pathways, and to take reasonable 

precautions to avoid injuries that may result from on-site and take-home exposure. 

BNSF observes that because the market for asbestos products has contracted 

significantly in the decades between Johnny‘s and Lynne‘s exposure and the 

current suits, the costs of these suits will be borne by entities other than the 

companies that directly benefitted from the past use of asbestos. But this is a 

concern that applies to all asbestos injuries. It does not provide a basis for 

discriminating between those plaintiffs who experienced on-site exposure to 

asbestos and those plaintiffs who experienced take-home exposures.

Defendants‘ most forceful contention is that a finding of duty in these cases 

would open the door to an ―enormous pool of potential plaintiffs.‖ BNSF argues 

there is no logical way of distinguishing between Lynne and anyone else who may 

have been exposed to asbestos carried by their on-site employees. Once we accept 

the principle of liability for asbestos exposure by means of employees carrying 

fibers outside the workplace, they argue, we invite claims from anyone who may 

have had contact with an asbestos worker, including ―innumerable relatives, 

friends, acquaintances, [and] service providers,‖ as well as ―babysitters, neighbors, 

. . . carpool partners, fellow commuters on public transportation, and laundry 

workers.‖ According to defendants, such an unlimited duty imposes great costs 

and uncertainty, and invites voluminous and frequently meritless claims that will 

overwhelm the courts.
22

Like the Court of Appeal in Haver, defendants rely on Campbell, supra, 

206 Cal.App.4th 15, to argue that the uncertainty and size of potential liability for 

defendants weighed against a finding of duty. Campbell, in turn, relied on Oddone 

v. Superior Court (2009) 179 Cal.App.4th 813. In Oddone, the plaintiff alleged 

that her husband‘s employer negligently exposed him to toxic chemicals, which 

the husband then brought home to the plaintiff, injuring her. (Id. at p. 816.) 

Oddone said: ―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.‖ (Id. at p. 822; accord, Campbell, at p. 33.)

Defendants are correct that a finding of ―  ̳ ―[n]o duty‖ ‘ ‖ is in effect ―  ̳a 

global determination that, for some overriding policy reason, courts should not 

entertain causes of action for cases that fall into certain categories,‘ ‖ even if some 

defendants in such cases did actually cause the harm of which the plaintiffs 

complained. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1228 (conc. opn. of 

Kennard, J.), quoting Sugarman, Assumption of Risk (1997) 31 Valparaiso U. 

L.Rev. 833, 843.) ―  ̳[N]ot every loss can be made compensable in money 

damages, and legal causation must terminate somewhere.‖ (Borer v. American 

Airlines, Inc. (1977) 19 Cal.3d 441, 446.) Even if recognizing a duty would 

enable some plaintiffs to obtain legitimate compensation for their injuries, the 

argument goes, this interest is outweighed by the costs — to the defendants, the 

judicial system, and society as a whole — of unremitting litigation by other 

plaintiffs whose claims are tenuous at best.
23

But recognizing a duty with respect to one set of potential plaintiffs does 

not imply that any plaintiff may make a similar claim. ―If the actor‘s conduct 

creates such a recognizable risk of harm only to a particular class of persons, the 

fact that it in fact causes harm to a person of a different class, to whom the actor 

could not reasonably have anticipated injury, does not make the actor liable to the 

persons so injured.‖ (Rest.2d Torts § 281, com. (c), p. 5.) Although defendants 

raise legitimate concerns regarding the unmanageability of claims premised upon 

incidental exposure, as in a restaurant or city bus, these concerns do not clearly 

justify a categorical rule against liability for foreseeable take-home exposure. 

(Cabral, supra, 51 Cal.4th at p. 772.) Instead, the concerns point to the need for a 

limitation on the scope of the duty here.

We hold that an employer‘s or property owner‘s duty to prevent take-home 

exposure extends only to members of a worker‘s household, i.e., persons who live 

with the worker and are thus foreseeably in close and sustained contact with the 

worker over a significant period of time. To be sure, there are other persons who 

may have reason to believe they were exposed to significant quantities of asbestos 

by repeatedly spending time in an enclosed space with an asbestos worker — for 

example, a regular carpool companion. But any duty rule will necessarily exclude 

some individuals who, as a causal matter, were harmed by the conduct of potential 

defendants. By drawing the line at members of a household, we limit potential 

plaintiffs to an identifiable category of persons who, as a class, are most likely to 

have suffered a legitimate, compensable harm.

This limitation comports with our duty analysis under Rowland. Our 

finding of foreseeability turned on the fact that a worker can be expected to return 

home each work day and to have close contact with household members on a 

regular basis over many years. Persons whose contact with the worker is more 

incidental, sporadic, or transitory do not, as a class, share the same characteristics 
24

as household members and are therefore not within the scope of the duty we 

identify here. This rule strikes a workable balance between ensuring that 

reasonably foreseeable injuries are compensated and protecting courts and 

defendants from the costs associated with litigation of disproportionately meritless 

claims.

Abex contends that if we find a duty to prevent take-home exposure, the 

duty should be limited to immediate family members. But extending the duty to 

household members, not just immediate family members, more closely tracks the 

rationale for the existence of the duty. ―Being a household member refers not only 

to the relationships among members of a family, but also to the bonds which may 

be found among unrelated persons adopting nontraditional and quasi-familial 

living arrangements.‖ (People v. Jeffers (1987) 43 Cal.3d 984, 992.) As used in 

other legal contexts, the term ―household‖ refers to persons who share ―  ̳physical 

presence under a common roof‘ ‖ (People v. Wutzke (2002) 28 Cal.4th 923, 939) 

or relationships aimed at common subsistence (Safeco Ins. Co. of America v. 

Parks (2004) 122 Cal.App.4th 779, 792). The cause of asbestos-related diseases is 

the inhalation of asbestos fibers; the general foreseeability of harm turns on the 

regularity and intimacy of physical proximity, not the legal or biological 

relationship, between the asbestos worker and a potential plaintiff.

As an instructive point of contrast, we have limited the scope of a duty to 

immediate family members where the alleged injury is negligent infliction of 

emotional distress (Thing v. La Chusa (1989) 48 Cal.3d 644; Christensen v. 

Superior Court (1991) 54 Cal.3d 868) or loss of consortium (Elden v. Sheldon 

(1988) 46 Cal.3d 267; Borer v. American Airlines, Inc., supra, 19 Cal.3d 441; 

Baxter v. Superior Court (1977) 19 Cal.3d 461). In each of these cases, the 

emotional injury grew out of the loss of a relationship to a third party or the 

vicarious suffering of the plaintiff with respect to that third party. Here, the 
25

significance of a plaintiff‘s relationship to a third party (an asbestos worker) lies in 

the degree of exposure the plaintiff had to asbestos dust as a result of his or her 

physical contact and cohabitation with the third party in an enclosed space. Such 

contact and cohabitation within a household does not depend on a legal or 

biological relationship between the plaintiff and the worker.

C.

In sum, proper application of the Rowland factors supports the conclusion 

that defendants had a duty of ordinary care to prevent take-home asbestos 

exposure. Such exposure and its resulting harms to human health were reasonably 

foreseeable to large-scale users of asbestos by the 1970s, and the OSHA Standard 

affirmed the commonsense reality that asbestos fibers could be carried on the 

person or clothing of employees to their homes and could be inhaled there by 

household members. Businesses making use of asbestos were well positioned, 

relative to their workers, to undertake preventive measures, and Abex and BNSF 

cite no evidence to suggest such measures would have been unreasonably costly. 

Although the lawful use of asbestos is not inherently reprehensible, no state policy 

promotes or specially protects it. We are mindful that recognizing a duty to all 

persons who experienced secondary exposure could invite a mass of litigation that 

imposes uncertain and potentially massive and uninsurable burdens on defendants, 

the courts, and society. But this concern does not clearly justify a categorical 

exemption from liability for take-home exposure. ―The law is not indifferent to 

considerations of degree‖ (A.L.A. Schechter Poultry Corp. v. U.S. (1935) 295 U.S. 

495, 554 (conc. opn. of Cardozo, J.)), and the foreseeability of take-home 

exposure and associated risk of injury are at their maximum when it comes to 

members of an employee‘s household. Accordingly, we hold that defendants 

owed the members of their employees‘ households a duty of ordinary care to 

prevent take-home exposure and that this duty extends no further. We disapprove 
26

Campbell v. Ford Motor Co., supra, 206 Cal.App.4th 15, and Oddone v. Superior 

Court, supra, 179 Cal.App.4th 813, to the extent they are inconsistent with this 

opinion.

Defendants analogize the present cases to Bily, supra, 3 Cal.4th 370, but the 

comparison actually reinforces why relevant policy considerations weigh in favor 

of a duty here. The court in Bily was concerned that ―[a]n award of damages for 

pure economic loss suffered by third parties raises the spectre of vast numbers of 

suits and limitless financial exposure‖ for auditors, a concern similar to those 

raised by defendants here. (Id. at p. 400.) We held that accountants do not have a 

duty to prevent investors‘ losses as a result of negligent auditing because (1) ―the 

complexity of the professional opinions rendered in audit reports, and the difficult 

and potentially tenuous causal relationships between audit reports and economic 

losses from investment and credit decisions‖ make it challenging to determine the 

causal relationship between auditor mistakes and investor losses; (2) ―the 

generally more sophisticated class of plaintiffs‖ makes contract rather than tort 

law an effective means of allocating risk; and (3) the added risk of secondary 

liability is unlikely to alter accountants‘ behavior because they already have a 

significant business interest in accuracy. (Id. at p. 398.)

None of these countervailing considerations applies to take-home asbestos 

exposure: (1) Unlike the causal relationship between auditor mistakes and 

investor losses, the causal relationship between preventable asbestos exposure of 

sufficient intensity and duration and the type of injuries plaintiffs allege here is 

clear and scientifically well established, and was so at the time of Lynne‘s and 

Johnny‘s alleged exposure. (See OSHA Standard, supra, 37 Fed. Reg. 11318 

[―No one has disputed that exposure to asbestos of high enough intensity and long 

enough duration is causally related to asbestosis and cancers.‖].) (2) Plaintiffs 

such as Lynne and Johnny are not sophisticated with respect to the dangers of 
27

asbestos, much less able to contract with the relevant employers or premises 

owners regarding safety procedures. (3) Nor do asbestos-using companies have a 

business interest, apart from potential liability, in taking precautions to prevent 

take-home exposure. Moreover, we have limited the duty to prevent take-home 

asbestos exposure to a discrete category, namely, members of a worker‘s 

household. This limitation means that not all persons who foreseeably 

experienced secondary exposure may sue for damages; as a result, defendants are 

unlikely to ―face[] potential liability far out of proportion to [their] fault.‖ (Bily, 

supra, 3 Cal.4th at p. 398.)

Finally, Abex argues that even if we find it had a duty to prevent take-home

asbestos exposure, we must find as a matter of law that Kesner cannot meet the 

burden of demonstrating proximate causation. Whatever merit this argument may 

have, we do not address it here. The only issue on which we granted review was 

whether a duty exists to prevent take-home exposure. We have no occasion to 

address other arguments defendants might make to defeat liability. It must be 

remembered that a finding of duty is not a finding of liability. To obtain a 

judgment, a plaintiff must prove that the defendant breached its duty of ordinary 

care and that the breach proximately caused the plaintiff‘s injury, and the 

defendant may assert defenses and submit contrary evidence on each of these 

elements. Here, Abex may argue that in light of other sources of asbestos to 

which Johnny may have been exposed, one cannot say with sufficient certainty 

that fibers carried home by his uncle were a ―substantial factor‖ (Rutherford v. 

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968) in bringing about Johnny‘s 

mesothelioma. BNSF similarly argues (with respect to the ―closeness of 

connection‖ between its conduct and Lynne‘s injuries) that the Havers‘ own 

complaint, by alleging that Mike was exposed to asbestos in a variety of other 

contexts, casts doubt on the causal relationship between BNSF‘s use of asbestos 
28

and Lynne‘s mesothelioma. The possibility of other sources of exposure is a factspecific inquiry; it does not bear on the question of duty, which must be addressed 

at a higher level of generality. (Cabral, supra, 51 Cal.4th at p. 772.)

IV.

The Havers and Kesner allege different primary theories of liability: 

premises liability (the Havers) and negligence (Kesner). BNSF argues that even if 

employers have a duty to prevent employees from exposing members of their 

household to asbestos by carrying fibers home on their clothing, property owners 

do not have a similar obligation with respect to workers on their premises. 

According to BNSF, to hold that property owners owe a duty of ordinary care to 

persons who have never set foot on the premises ―would take the  ̳premises‘ out of 

premises liability and unsettle the tort law that applies to all property owners in 

this state.‖ We disagree.

The elements of a negligence claim and a premises liability claim are the 

same: a legal duty of care, breach of that duty, and proximate cause resulting in 

injury. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998; see Ladd v. 

County of San Mateo (1996) 12 Cal.4th 913, 917 [negligence cause of action]; 

Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [cause of action for premises 

liability].) Premises liability ―  ̳is grounded in the possession of the premises and 

the attendant right to control and manage the premises‘ ‖; accordingly, ―  ̳mere 

possession with its attendant right to control conditions on the premises is a 

sufficient basis for the imposition of an affirmative duty to act.‘ ‖ (Preston v. 

Goldman (1986) 42 Cal.3d 108, 118, italics omitted, quoting Sprecher v. Adamson 

Companies (1981) 30 Cal.3d 358, 368, 370.) But the duty arising from possession 

and control of property is adherence to the same standard of care that applies in 

negligence cases. (Rowland, supra, 69 Cal.2d at p. 119 [―The proper test to be 

applied to the liability of the possessor of land . . . is whether in the management 
29

of his property he has acted as a reasonable man in view of the probability of 

injury to others . . . .‖]; accord, Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) In 

determining whether a premises owner owes a duty to persons on its property, we 

apply the Rowland factors. (See, e.g., Thai v. Stang (1989) 214 Cal.App.3d 1264, 

1271 [Rowland analysis applies to premises liability cases].) Indeed, Rowland 

itself involved premises liability. (Rowland, at p. 110.)

We have never held that the physical or spatial boundaries of a property 

define the scope of a landowner‘s liability. The Courts of Appeal have repeatedly 

concluded that ―  ̳[a] landowner‘s duty of care to avoid exposing others to a risk of 

injury is not limited to injuries that occur on premises owned or controlled by the 

landowner.‘ ‖ (Garcia v. Paramount Citrus Association (2008) 164 Cal.App.4th 

1448, 1453; see Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478 (Barnes); 

McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7–8 (McDaniel).) 

―Rather, the duty of care encompasses a duty to avoid exposing persons to risks of 

injury that occur off site if the landowner‘s property is maintained in such a 

manner as to expose persons to an unreasonable risk of injury off-site.‖ (Barnes, 

supra, 71 Cal.App.4th at p. 1478; see Davert v. Larson (1985) 163 Cal.App.3d 

407, 410 [―A landowner or possessor owes a duty of care to persons who come on 

his property as well as to persons off the property for injuries due to the 

landowner‘s lack of due care in the management of his property.‖].)

BNSF argues that those cases are distinguishable on the ground that the 

relevant off-site injuries were due in part to the plaintiff‘s proximity to the 

defendant‘s property, a fact that implicitly establishes a self-limiting principle for 

finding such liability. Noting that Garcia, Barnes, and McDaniel addressed 

liability for accidents occurring adjacent to the defendant‘s property, BNSF says 

this court has ―never expanded premises liability to permit lawsuits by plaintiffs 
30

whose only connection to the property at issue is an encounter with someone who 

visited the site.‖

Although this last statement is superficially correct, it misconstrues the 

Havers‘ theory of negligence. It is not Lynne‘s contact with Mike that allegedly 

caused her mesothelioma, but rather Lynne‘s contact with asbestos fibers that 

BNSF used on its property. Mike and his clothing acted as a vector to carry the 

fibers into Mike and Lynne‘s home, where she was exposed. The Havers‘ claim 

of negligence focuses on an allegedly hazardous condition created and maintained 

on BNSF‘s property and BNSF‘s alleged failure to contain that hazard as a 

reasonable property owner would have done in the mid-1970s. This claim is 

readily attributable ―to [a] specific condition, natural or artificial,‖ on BNSF‘s 

property. (A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657, 

663.)

Indeed, liability for harm caused by substances that escape an owner‘s 

property is well established in California law. ―The Rowland factors determine 

the scope of a duty of care whether the risk of harm is situated on site or off site.‖ 

(Barnes, supra, 71 Cal.App.4th at p. 1479, quoting McDaniel, supra, 220 

Cal.App.3d at pp. 7–8.) We have found that landowners have a duty to prevent 

hazardous natural conditions arising on their property from escaping and causing 

injury to adjacent property. (See Sprecher v. Adamson Companies (1981) 30 

Cal.3d 358 [applying Rowland factors to find that an uphill landowner had a duty 

to correct or control a landslide condition on their land that eventually pushed a 

downhill landowner‘s home into a third house, resulting in damages].) A similar 

rule applies to escaping animals. (See Davert, supra, 163 Cal.App.3d 407 [finding 

landowner had a duty to prevent injuries due to a horse‘s escape from the property 

and subsequent collision with an automobile]; Curtis v. State of California ex rel. 

Dept. of Transportation (1982) 128 Cal.App.3d 668 [upholding verdict finding the 
31

state negligent in constructing defective fences that permitted a cow to escape and 

create a dangerous condition by entering a public highway].) And the Courts of 

Appeal ―have consistently held private persons liable for negligently setting fires 

and for negligently allowing fires to escape to others‘ properties.‖ (Anderson v. 

United States (9th Cir. 1995) 55 F.3d 1379, 1381, citing People v. Southern 

Pacific Co. (1983) 139 Cal.App.3d 627, 633–634, and Gould v. Madonna (1970) 5 

Cal.App.3d 404, 406.) 

The cases above do not suggest that the duties of employers and the duties 

of premises owners are necessarily coextensive. The law of premises liability 

includes a number of affirmative defenses and exceptions flowing from the 

general principle that ―  ̳[t]he duties owed in connection with the condition of land 

are not invariably placed on the person [holding title] but, rather, are owed by the 

person in possession of the land [citations] because [of the possessor‘s] 

supervisory control over the activities conducted upon, and the condition of, the 

land.‘ ‖ (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1161.) For example, a 

landowner ―who hired an independent contractor generally [is] not liable to third 

parties for injuries caused by the contractor‘s negligence in performing the work.‖ 

(Privette v. Superior Court (1993) 5 Cal.4th 689, 693; cf. Van Fossen v. 

MidAmerican Energy Co. (Iowa 2009) 777 N.W.2d 689, 698.) At the same time, 

the rule is subject to exceptions: ―[T]he hirer as landowner may be independently 

liable to the contractor‘s employee, even if it does not retain control over the work, 

if (1) it knows or reasonably should know of a concealed, preexisting hazardous 

condition on its premises; (2) the contractor does not know and could not 

reasonably ascertain the condition; and (3) the landowner fails to warn the 

contractor.‖ (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)
32

We express no view on whether BNSF can assert one or more of these factspecific defenses or whether the exceptions under the Privette doctrine, which 

applies to a contractor‘s employees, also apply to injuries to those employees‘ 

family members. No such defense has been alleged. The facts as pleaded, which 

we must accept as true at this stage (see Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1081), are that BNSF‘s predecessor was not a passive consumer 

of asbestos but instead had ―  ̳supervisory control‘ ‖ (Alcaraz v. Vece, supra, 14 

Cal.4th at p. 1158) over the sources of asbestos to which Lynne was exposed. 

Mike, who carried the asbestos home, was an employee of that predecessor. 

Under these circumstances, in which BNSF‘s predecessors are alleged to have 

engaged in active supervisory control and management of asbestos sources, the 

Havers‘ premises liability claim is subject to the same requirements and same duty 

analysis that apply to a claim of general negligence. 

V. 

Looking beyond California law, Abex and BNSF urge us to follow what 

Abex characterizes as ―a growing majority of courts‖ that have rejected a duty of 

ordinary care to prevent take-home exposure to asbestos. This argument rests on a 

mischaracterization of out-of-state precedent. The only courts that have squarely 

addressed cases of take-home exposure factually comparable to the cases before 

us, and that have applied general tort law principles commensurate with our own, 

have reached the same conclusion we do here. All of the cases cited by defendants 

as failing to find a duty are readily distinguishable.

First, a number of the cases defendants cite address facts different from 

those presented here. In Martin v. Cincinnati Gas & Elec. Co. (6th Cir. 2009) 561 

F.3d 439, the Sixth Circuit found ―no evidence that either defendant had actual 

knowledge of the danger of bystander exposure‖ during a period of alleged 

exposure spanning the years 1951 through 1963. (Id. at pp. 444–445.) But the 
33

exposure at issue here occurred in the 1970s, after OSHA had promulgated a 

standard to address the acknowledged danger of take-home exposure. (OSHA 

Standard, supra, 37 Fed. Reg. 11320.) Decisions of the Illinois Supreme Court 

and Texas Courts of Appeal are similarly distinguishable. (See Simpkins v. CSX 

Transportation, Inc. (Ill. 2012) 965 N.E.2d 1092 [remanding to allow plaintiffs 

leave to amend the complaint to state enough well-pleaded facts to establish 

foreseeability]; Alcoa, Inc. v. Behringer (Tex.App. 2007) 235 S.W.3d 456, 462 

[plaintiff failed to show that ―the danger of non-occupational exposure to asbestos 

dust on workers‘ clothes was . . . known [or] reasonably foreseeable to Alcoa in 

the 1950s‖ and thus Alcoa did not owe a duty to a plaintiff alleging take-home 

exposure ―under the facts of this case‖]; but cf. Dube v. Pittsburgh Corning (1st 

Cir. 1989) 870 F.2d 790, 793 [the Navy was ―charged with knowledge of the risk 

[of asbestos] to domestic bystanders as of October 1964‖ and was negligent in its 

failure to ―consider[] whether those risks justified a warning‖], abrogated on other 

grounds by Shansky v. U.S. (1st Cir. 1999) 164 F.3d 688.)

Second, defendants cite a number of product liability suits. The Maryland 

high court determined that a products manufacturer could not foresee and had no 

means of preventing take-home exposure as the result of use of its asbestoscontaining product in 1969. (See Georgia Pacific, LLC v. Farrar (Md. 2013) 69 

A.3d 1028, 1039.) But that same court, on the same day, upheld a judgment 

awarding damages on a product liability and take-home exposure claim and noted 

that, although the defendants had not challenged the foreseeability of the alleged 

injury and therefore the court did not address that issue, the fact that exposure 

―extended well beyond 1972‖ might alter the foreseeability determination. (Dixon 

v. Ford Motor Co. (Md. 2013) 70 A.3d 328, 330, fn. 1.) More to the point, takehome asbestos cases against employers or premises owners allege that the 

defendants had direct knowledge as to how fibers were being released and 
34

circulated within their facilities and failed to prevent those employees from 

leaving workplaces owned or controlled by the defendants with asbestos on their 

clothing or persons. Product liability defendants, by contrast, have no control over 

the movement of asbestos fibers once the products containing those fibers are sold. 

Because the Rowland analyses for these two theories of liability differ 

significantly, product liability cases are inapposite.

Third, defendants cite cases where the court, in concluding that the 

defendants did not have a duty to prevent take-home exposure, asserted as a 

foundational principle of tort liability that a plaintiff and a defendant must have a 

prior relationship for a duty to exist from the latter to the former. This category 

includes the New York high court‘s opinion in Matter of New York City Asbestos 

Litigation (N.Y. 2005) 840 N.E.2d 115, 119. An Illinois appellate court has 

similarly predicated its finding of no duty on the absence of a relationship between 

plaintiff and defendant. (Nelson v. Aurora Equipment Co. (Ill.App.Ct. 2009) 909 

N.E.2d 931, 934.) Other courts have downplayed the significance of 

foreseeability while embracing a preexisting relationship between plaintiff and 

defendant as a prerequisite to the establishment of a duty. (See Gillen v. Boeing 

Co. (E.D. Pa. 2014) 40 F.Supp.3d 534, 538–540 [applying Pennsylvania tort law 

where foreseeability ―  ̳is not necessarily a dominant factor‘ ‖ and where the fact 

that parties were ―  ̳legal strangers‘ ‖ is a significant consideration to hold that 

plaintiff‘s husband‘s employer had no duty to protect plaintiff from asbestos]; In 

re Certified Question from Fourteenth District Court of Appeals of Texas (Mich. 

2007) 740 N.W.2d 206, 211 [―  ̳Duty . . . ―concerns the problem of the relation 

between individuals which imposes upon one a legal obligation for the benefit of 

the other,‖ ‘ ‖]; id. at p. 212 [―Although foreseeability is a factor to be considered, 

 ̳[all] other considerations may be, and usually are, more important.‘ ‖].)
35

In California, both legislative policy (section 1714) and this court‘s longstanding precedent have treated foreseeability as the predominant factor in duty 

analysis. Although we have held that the existence of a relationship between the 

plaintiff and defendant is one basis for finding liability premised on the conduct of 

a third party (see Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203–205; 

Tarasoff, supra, 17 Cal.3d at pp. 435–436), we have never held that such a 

relationship is a prerequisite to finding that a defendant had a duty to prevent 

injuries due to its own conduct or possessory control. Indeed, the irrelevance of 

the relationship between the plaintiff and the defendant is the central holding of 

Rowland: We squarely rejected the notion that duty analysis should turn on 

whether the person injured on the owner‘s or occupier‘s premises was a trespasser, 

licensee, or invitee. (Rowland, supra, 69 Cal.2d at pp. 116–119.) Although ―in 

general‖ there may be a correlation between the factors relevant to duty analysis 

and the plaintiff‘s relationship to a property owner, ―there are many cases in which 

no such relationship may exist‖ yet proper analysis of the Rowland factors would 

support the existence of a duty. (Id. at pp. 117–118.) The New York, Illinois, 

Pennsylvania, and Michigan authorities are therefore inapplicable to our present 

analysis, as each begins from a principle of tort law this court has long rejected.

Finally, defendants cite two decisions rejecting take-home asbestos claims 

by the Delaware Supreme Court. In both cases, the court relied heavily on a 

distinction between misfeasance and nonfeasance to conclude that an employer‘s 

failure to prevent take-home exposure is nonfeasance and thus, in the absence of a 

―legally significant relationship‖ between the plaintiff and their spouse‘s 

employer, no legal duty existed. (Riedel v. ICI Americas Inc. (Del. 2009) 968 

A.2d 17, 25–27; see Price v. E.I. DuPont de Nemours & Co. (Del. 2011) 26 A.3d 

162, 170 [applying same reasoning to a ―failure to warn‖ claim].) The Delaware 

Supreme Court ―decline[d] to adopt . . . the principle that absent a countervailing 
36

principle or policy‖ all actors have a ―duty to exercise reasonable care when the 

actor‘s conduct creates a risk of physical harm,‖ as stated by section 7 of the 

Restatement (Third) of Torts, Physical and Emotional Harm. (Riedel, supra, 968 

A.2d at pp. 20–21.) But we have endorsed precisely this principle — and section 

7 of the Restatement Third of Torts — as an articulation of California law. 

(Cabral, supra, 51 Cal.4th at p. 771 fn. 2). Thus, the Delaware Supreme Court‘s 

approach is not informative here because it begins from a plainly different general 

principle of tort liability. 

Against this body of distinguishable precedent stand decisions from two 

state high courts and one intermediate appellate court that begin with the premise 

that foreseeability of injury is a significant factor in duty analysis, find that takehome exposure is reasonably foreseeable to employers using asbestos-containing 

materials, weigh this foreseeability against public policy considerations, and 

conclude that possessors or employers owe members of a worker‘s household a 

duty to prevent take-home exposure. (See Satterfield v. Breeding Insulation Co.

(Tenn. 2008) 266 S.W.3d 347 (Satterfield); Olivo, supra, 895 A.2d at pp. 1148–

1149 [weighing ―foreseeability of the risk of harm to that individual or identifiable 

class of individuals‖ and considerations of fairness, and concluding that ―to the 

extent [defendant] owed a duty to workers on its premises for the foreseeable risk 

of exposure to friable asbestos and asbestos dust, similarly, [defendant] owed a 

duty to spouses handling the workers‘ unprotected work clothing‖]; Chaisson v. 

Avondale Industries, Inc. (La.Ct.App. 2006) 947 So.2d 171, 182, 184 [following 

Olivo on the ground that Louisiana jurisprudence ―relie[s] more heavily upon 

foreseeability,‖ and finding public policy weighs in favor of finding a ―duty of a 

company with knowledge of the presence of asbestos and OSHA‘s 1972 standards 

. . . to guard against [plaintiff‘s] household exposure to asbestos from laundering 

her husband‘s work clothes‖]; Zimko v. American Cyanamid (La.Ct.App. 2005) 
37

905 So.2d 465, 483 [finding a ―duty to act reasonably in view of the foreseeable 

risks of danger to household members of its employees resulting from exposure to 

asbestos fibers carried home on its employee‘s clothing, person, or personal 

effects‖ because inference of this danger was not particularly difficult and was 

―definable as including the employee‘s household members‖].)

The reasoning of the Tennessee Supreme Court in Satterfield is particularly 

instructive. There the plaintiff had ―filed a negligence action against her father‘s 

employer, alleging that the employer had negligently permitted her father to wear 

his asbestos-contaminated work clothes home from work.‖ (Satterfield, supra, 

266 S.W.3d at p. 351.) After finding that the ―paramount‖ factor, foreseeability, 

weighed in favor of finding a duty (id. at p. 366), the court addressed objections by 

the defendant similar to those raised by Abex and BNSF, i.e., that manufacturers 

―could face bankruptcy‖ (id. at p. 369), thereby costing jobs, and that finding a 

duty would invite claims by other plaintiffs against all premise owners (id. at 

pp. 370–371). The court reasoned that failing to assign liability to manufacturers 

will not eliminate the burden these injuries have caused, but merely leave them on 

the shoulders of the injured persons and fellow purchasers of health insurance, and 

―no particular public policy reason[s]‖ favor allocating costs in this way. (Id. at 

p. 371.) The court concluded that an ―employer owed a duty to those who 

regularly and for extended periods of time came into close contact with the 

asbestos-contaminated work clothes of its employees to prevent them from being 

exposed to a foreseeable and unreasonable risk of harm.‖ (Id. at p. 352.) The 

court went on to emphasize that a verdict against a premises owner will always 

require proof that an injury due to take-home exposure was ―reasonably 

foreseeable‖ in the particular circumstances of the case, a determination that 

depends on fact-specific questions of asbestos quantity and the particularized 

knowledge and sophistication of an individual defendant. (Id. at p. 371.) 
38

In sum, the holding in this case is consistent with the conclusions of courts 

that have adopted a general principle of tort liability analogous to section 1714 or 

that allow recovery, as we did in Rowland, for foreseeable categories of injury 

regardless of the relationship of the parties. Other courts and scholars, surveying 

precedent on the issue of take-home exposure, have reached the same conclusion: 

The different outcomes among state courts reflect underlying differences in the 

duty doctrine in the respective states, not a split between a majority and a minority 

position on the ultimate policy issues. (See Satterfield, supra, 266 S.W.3d at 

p. 373; Levine, Clearing the Air: Ordinary Negligence in Take-Home Asbestos 

Exposure Litigation (2011) 86 Wash. L.Rev. 359, 360.) By holding that section 

1714 and Rowland analysis establish a duty to prevent take-home exposure that 

extends to members of a worker‘s household, we stand in harmony with other 

courts that have applied similar law to similar facts.
39

CONCLUSION

For the reasons above, we reverse the judgment of the Court of Appeal in 

Haver and remand for further proceedings not inconsistent with this opinion. We 

vacate the judgment of the Court of Appeal in Kesner and remand for further 

proceedings not inconsistent with this opinion, including, if appropriate, a remand 

to the trial court for the parties to submit additional evidence on whether Johnny 

Kesner was a member of George Kesner‘s household for purposes of the duty we 

recognize here.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Kesner v. Superior Court and Haver v. BNSF Railway Company

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 226 Cal.App.4th 251 and 226 Cal.App.4th 1104

Rehearing Granted

__________________________________________________________________________________

Opinion No. S219534 and S299919

Date Filed: December 1, 2016

__________________________________________________________________________________

Court: Superior

County: Alameda and Los Angeles

Judge: John M. True and Richard E. Rico

__________________________________________________________________________________

Counsel:

Weitz & Luxenberg, Benno Ashrafi, Cindy Saxey, Josiah W. Parker; Kazan, McClain, Satterley & 

Greenwood and Ted W. Pelletier for Petitioner and for Plaintiff and Appellant Cecelia Kesner.

Brayton Purcell, Alan R. Brayton, Gilbert L. Purcell and Gary L. Brayton as Amici Curiae on behalf of 

Petitioner and Plaintiff and Appellant Cecelia Kesner.

The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on 

behalf of Petitioner and Plaintiff and Appellant Cecelia Kesner.

Walters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants Joshua Haver, et 

al.

The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on 

behalf of Plaintiffs and Appellants Joshua Haver, et al.

No appearance for Respondent Superior Court.

Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Curt Cutting; Brydon Hugo & Parker, Hugo Parker, 

Edward R. Hugo, James C. Parker and Jeffrey Kaufman for Real Party in Interest and for Defendant and 

Respondent Pneumo Abex, LLC.

McKenna Long & Aldridge, Lisa L. Oberg; McDermott Will & Emery and Colleen E. Baime for 

CertainTeed Corporation and Honeywell International Inc., as Amici Curiae on behalf of Real 

Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel 

and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Real Party in Interest and 

Defendant and Respondent Pneumo Abex, LLC.
Page 2 – S219534 & S219919 counsel continued

Counsel:

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Real 

Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Real Party in Interest and 

Defendant and Respondent Pneumo Abex, LLC.

Armstrong & Associates and William H. Armstrong for Resolute Management as Amicus Curiae on behalf 

of Real Party in Interest and Defendant and Respondent Pneumo Abex, LLC.

Schiff Hardin and Eliot S. Jubelirer for Owens-Illinois, Inc., as Amicus Curiae on behalf of Real Party in 

Interest and Defendant and Respondent Pneumo Abex, LLC.

Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Coalition for Litigation Justice, Inc., 

Chamber of Commerce of the United States of America, National Association of Manufacturers, American 

Tort Reform Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party 

in Interest and Defendant and Respondent Pneumo Abex, LLC.

Gordon & Rees and Don Willenburg for Association of Defense Counsel of Northern California and 

Nevada as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo Abex, 

LLC.

Horvitz & Levy, Curt Cutting and Steven Fleischman for Association of Southern California Defense 

Counsel as Amicus Curiae on behalf of Real Party in Interest and Defendant and Respondent Pneumo 

Abex, LLC.

Sims Law Firm, Selim Mounedji; Gibson, Dunn & Crutcher, Veronica Lewis, Theodore J. Boutrous Jr., 

Joshua S. Lipshutz and Alexander M. Fenner for Defendant and Respondent BNSF Railway Company.

Fred J. Hiestand; Erika C. Frank and Heather L. Wallace for The California Chamber of Commerce and 

The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent BNSF 

Railway Company.

Shook, Hardy & Bacon, Mark A. Behrens and Patrick Gregory for Litigation Justice, Inc., Chamber of 

Commerce of the United States of America, National Association of Manufacturers, American Tort Reform 

Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Defendant and 

Respondent BNSF Railway Company.

Snell & Wilmer, Mary-Christine Sungaila and Jenny Hua for International Association of Defense Counsel 

and Federation of Defense & Corporate Counsel as Amici Curiae on behalf of Defendant and Respondent 

BNSF Railway Company.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and 

Respondent BNSF Railway Company.
Page 3 – S219534 & S219919 counsel continued

Counsel:

Louis P. Warchot, Daniel Saphire; Murphy, Campbell, Alliston & Quinn and Stephanie L. Quinn for 

Association of American Railroads as Amicus Curiae on behalf of Defendant and Respondent BNSF 

Railway Company.

King & Spalding, Peter A. Strotz, Steven D. Park and Ethan P. Davis for Western States Petroleum 

Association as Amici Curiae on behalf of Defendant and Respondent BNSF Railway Company.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Ted W. Pelletier

Kazan, McClain, Satterley & Greenwood

Jack London Market

55 Harrison Street, Suite 400

Oakland, CA 94607

(510) 302-1000

Lisa Perrochet

Horvitz & Levy

Business Arts Plaza

3601 West Olive Avenue, 8th Floor

Burbank, CA 91505-4681

(818) 995-0800

Michael B. Gurien

Walters Kraus & Paul

222 North Sepulveda Boulevard, Suite 1900

El Segundo. CA 90245

(310) 414-8146

Theodore J. Boutrous Jr.

Gibson, Dunn & Crutcher

333 South Grand Avenue

Los Angeles, CA 90071-3197

(213) 229-7000