1

Filed 5/15/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHNNY BLAINE KESNER, JR.,

Petitioner,

v.

THE SUPERIOR COURT OF ALAMEDA

COUNTY,

Respondent;

PNEUMO ABEX LLC,

Real Party in Interest.

A136378

(Alameda County

Super. Ct. No. RG11578906)

JOHNNY BLAINE KESNER, JR.,

Plaintiff and Appellant,

v.

PNEUMO ABEX, LLC,

Defendant and Respondent.

A136416

Johnny Blaine Kesner, Jr., appeals following the grant of a motion for nonsuit in 

favor of Pneumo Abex, LLC (Abex). Kesner’s uncle was employed by Abex from 1973 

to 2007. Kesner seeks to hold Abex liable for mesothelioma he contracted, allegedly due 

in part to his exposure, while present in his uncle’s home, to friable asbestos that his 

uncle brought home from work on his clothing. In granting nonsuit in Abex’s favor, the 

trial court, relying on the decision in Campbell v. Ford Motor Co. (2012) 206 

Cal.App.4th 15 (Campbell), concluded that “Abex owed no duty to Kesner for any 

exposure to asbestos through contact with an employee of the Abex plant, . . . none of 

which exposures took place at or inside Abex’s plant.”
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In defending the ruling, Abex contends that “no duty is owed [by an employer] to 

family members of workers for take-home exposures.” We do not believe that such a 

broad and unqualified limitation on an employer’s duty accurately states the law. We 

accept the premise that the prospect of “indeterminate liability” places a limitation on 

those to whom the duty of exercising reasonable care may extend. (E.g., Bily v. Arthur 

Young & Co. (1992) 3 Cal.4th 370, 392.) We also recognize the difficulty in articulating

the limits of that duty and the different conclusions that courts throughout the country 

have reached when considering claims for secondary exposure to toxics, particularly 

asbestos, emanating from the workplace.

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The duty of care undoubtedly does not extend 

to every person who comes into contact with an employer’s workers, but we conclude

that the duty runs at least to members of an employee’s household who are likely to be 

affected by toxic materials brought home on the worker’s clothing. While Kesner was not 

a member of his uncle’s household in the normal sense, he was a frequent visitor, 

spending several nights a week in the home. After consideration of the factors specified 

in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), as instructed by our Supreme 

Court in Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 (Cabral), we conclude that 

the likelihood of causing harm to a person with such recurring and non-incidental contact 

with the employer’s employee, in this case Kesner’s uncle, is sufficient to bring Kesner 

within the scope of those to whom the employer, in this case Abex, owes the duty to take 

reasonable measures to avoid causing harm.

BACKGROUND

Kesner was diagnosed with perotineal mesothelioma in February 2011. He filed 

suit against a number of defendants, including Abex, to recover damages for his injuries.

His complaint alleges causes of action for negligence, breach of express and implied 

 

1

See Levine, Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure 

Litigation (2011) 86 Wash. L.Rev. 359, 360, and the cases cited therein; see also, more 

recently, Clair v. Monsanto Co. (Mo.App. 2013) 412 S.W.3d 295.
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warranties, and strict products liability arising from his contact with asbestos 

manufactured or supplied to him as a worker or end user.

Kesner’s claims were resolved against all other defendants, all of which apparently 

were companies (or their successors) for which Kesner was himself employed and 

exposed to asbestos at their premises. Kesner’s remaining claim against Abex is based on 

the fact that Kesner’s uncle was an Abex employee who allegedly was exposed to 

harmful levels of asbestos in his job. Between 1973 and 1979 Kesner was a frequent 

guest in his uncle’s home, and often spent the night there.2The uncle allegedly came 

home in his work clothes covered in asbestos dust. While he was still in his work clothes, 

Kesner’s uncle would often play with Kesner and sometimes sleep near him. Kesner 

alleges that his exposure to the asbestos dust on his uncle’s clothing contributed to his 

contracting mesothelioma.

At the beginning of trial, Abex moved for a nonsuit. Abex argued that it had no 

legal duty to prevent asbestos exposure to Kesner under the rule announced in Campbell, 

supra, 206 Cal.App.4th 15. The superior court granted Abex’s motion for nonsuit and 

entered a final judgment in its favor, holding that Abex owed Kesner no duty for his 

exposure to asbestos resulting from Kesner’s contact with its employee.

Kesner initiated proceedings in this court with a petition for a writ of mandate.

The same day he also filed a notice of appeal in the superior court. This court determined 

that the writ review process is appropriate in this situation to expedite consideration of 

this issue to the extent possible due to Kesner’s declining health.

 

2 When asked at his deposition how often he would see his uncle, Kesner testified, “In my 

childhood, once or twice a week. As I got later into my teens, three to four times a week. 

I mean, once I got my driver’s license, it seemed like I was up there all the time.”When 

asked how often he stayed at his uncle’s house, he answered, “During my teen years, 

every once in a while. Once I joined the service, I would come home, and that’s . . . 

where I stayed when I came home.”When the uncle was asked how often he saw Kesner 

when the uncle was employed at Abex, the uncle testified “he probably stayed at my 

house on average of three days a week. Sometimes it might only [have] been one time. 

Sometimes it might have been a whole week. But I’d say on average of three days a 

week.”
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Abex moved to stay the appeal pending outcome of the writ proceeding. On 

December 21, 2012, this court stated that if no objections were filed within 10 days, it 

would consolidate the appeal, Kesner v. Pneumo Abex, LLC, A136416, with the writ 

proceeding, Kesner v. Superior Court, A136378, deem the return and traverse filed in the 

writ proceeding to be the respondent’s brief and appellant’s reply brief in the appeal, and 

consider the appeal to be fully briefed. No objections were filed, and the cases are now 

consolidated with the briefing in the writ proceeding serving to complete briefing in the 

appeal.

We granted requests of the Association of Defense Counsel of Northern California 

and Nevada and the Association of Southern California Defense Counsel to file an 

amicus brief and allowed petitioner an opportunity to respond, which he did not do.

DISCUSSION

We independently review an order granting a nonsuit and will not affirm the 

judgment unless, after interpreting the evidence most favorably in favor of the plaintiff 

and against the defendant, a judgment for the defendant was required as a matter of law.

(Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639.) Such is not the 

case here.

This case involves the asserted liability of a negligent manufacturer to a plaintiff

for injuries arising as a result of the plaintiff’s exposure to a harmful substance through 

contact with the manufacturer’s employee away from the manufacturer’s premises. Cases 

commonly refer to this situation as presenting a claim of secondary, para-occupational, or 

take-home exposure to a harmful substance. (See Oddone v. Superior Court (2009) 179 

Cal.App.4th 813, 821; Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 

1103, 1107.)

“The general rule in California is that ‘[e]veryone is responsible . . . 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. . . .’ (Civ. Code, § 1714, subd. (a).) In other words, ‘each 

person has a duty to use ordinary care and “is liable for injuries caused by his failure to 
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exercise reasonable care in the circumstances.” ’ ” (Cabral, supra, 51 Cal.4th at p. 771.)

But departures from the general rule favoring liability are warranted when clearly 

supported by public policy. (Rowland, supra, 69 Cal.2d at p. 112.)

“A departure from this fundamental principle involves the balancing of a number 

of considerations; the major ones 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 consequences to the community of imposing a duty to exercise care with resulting 

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

involved.” (Rowland, supra, 69 Cal.2d at pp. 112-113.) Application of the factors 

identified in Rowland is the starting point for analysis of whether to impose a duty of care 

in a secondary exposure case like this one. (Oddone v. Superior Court, supra, 179 

Cal.App.4th at p. 819.)

There is “an important feature of the analysis” that must be taken into account 

when we apply Rowland. (Cabral, supra, 51 Cal.4th at p. 772.) “[T]he Rowland factors 

are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, 

[our Supreme Court has] explained that 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 be appropriately imposed. . . .’ [Citations.] [¶] . . . [¶] 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, p. 772.)
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In Campbell, the court weighed the various Rowland factors and concluded 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.”

(Campbell, supra, 206 Cal.App.4th at p. 34; italics added.) The court correctly noted that 

“In California, ‘[f]orseeability and extent of burden to the defendant . . . have evolved to 

become the primary [Rowland] factors’ to be considered on the question of legal duty.”

(Campbell, p. 33.) Focusing on the obligations of a premises owner, the court noted that 

“ ‘Generally speaking, where the injury suffered is connected only distantly and 

indirectly to the defendant’s negligent act, the risk of that type of injury from the category 

of negligent conduct at issue is likely to be deemed unforeseeable.’ ” (id. at pp. 29-30, 

quoting Cabral, supra, 51 Cal.4th at p. 779) and that “while [the plaintiff in that case] 

seeks to hold Ford liable for its management of its premises, it is undisputed that [the 

plaintiff] never set foot on those premises . . . . A property owner’s duty to maintain its 

premises in a reasonably safe condition extends to all areas visitors are expressly or 

impliedly invited to use and over which the owner exercise actual or apparent control . . .

a property owner is ‘not ordinarily liable for injuries that occur on property not in his 

ownership, possession, or control unless he created the condition or had a right to control 

activities at the site.’ ” (Campbell, supra, at p. 30.)

The court in Campbell deemed “the extent of the burden to the defendant and the 

consequences to the community if the court imposes on a particular defendant a duty of 

care toward the plaintiff [to] weigh heavily against [the plaintiff].” (Campbell, supra, 206 

Cal.App.4th at p. 32.) The court quoted approvingly from Oddone v. Superior Court, 

supra, 179 Cal.App.4th at pp. 822-823: “ ‘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.’ ”
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(Campbell, p. 33.) The court also quoted from a Michigan decision concluding that 

“ ‘imposing a duty on a landowner to anybody who comes in contact with somebody who 

has been on the landowner’s property’ (and secondarily exposed to asbestos as a result) 

‘ “would create a potentially limitless pool of plaintiffs.” ’ ” (Id. at p. 34, quoting Miller 

v. Ford Motor Co. (In re Certified Question) (2007) 479 Mich. 498, 521 [740 N.W.2d 

206, 220].)3

We need not question the conclusion in Campbell that under Rowland and Cabral,

a landowner owes no duty of care to those coming into contact with persons whose 

clothing carries asbestos dust from the landowner’s premises. The claim against Ford 

Motor Company asserted in Campbell was based on Ford’s passive involvement as owner 

of the plant in which an independent contractor was installing asbestos insulation.

Plaintiff’s claim in the present case is not based on a theory of premises liability but on a 

claim of negligence in the manufacture of asbestos-containing brake linings. While the 

same Rowland factors are pertinent to the analysis of a negligence claim, the balance that 

must be struck is not necessarily the same as under a claim of premises liability. The 

norm in considering negligence claims is the general duty to use reasonable care to avoid 

injuring others. When considering the scope of an employer’s obligations under the 

concept of respondeat superior for harm to others caused by an employee, the focus is on 

whether “the employee’s act was an ‘outgrowth’ of his employment, ‘ “ ‘inherent in the 

working environment,’ ” ’ ‘ “ ‘typical of or broadly incidental to” ’ “the employer’s 

business, or, in a general way, foreseeable from his duties.” (Yamaguchi v. Harnsmut

(2003) 106 Cal.App.4th 472, 482.) The same questions are pertinent to the scope of an 

employer’s duty of care to others injured by interaction with the employer’s workers.

Consideration of the Rowland factors as they bear on a negligence claim does not 

lead to the conclusion that an employer responsible for exposing its employees to a toxin 

 

3

The court also quoted other out-of-state authority reaching the same conclusion with 

respect to negligence claims. It also recognized the split of authority on this issue among 

the states. (Campbell, supra, 206 Cal.App.4th at pp. 33-34.)
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such as asbestos, or for failing to warn or take reasonable protective measures, bears no 

responsibility to any nonemployee foreseeably affected by exposure to the toxin. Without 

discussion, the contrary has been assumed in prior reported cases (e.g., Bettencourt v. 

Hennessy Industries Inc., supra, 205 Cal.App.4th 1103) and in numerous cases resolved 

in our trial courts without appeals having been taken. This is so for good reason. The first 

three factors identified in Rowland are related and tend to support extension of the 

employer’s duty beyond its employees. As a general matter, harm to others resulting from

secondary exposure to asbestos dust is not unpredictable. The harm to third parties that 

can arise from a lack of precautions to control friable asbestos that may accumulate on 

employees’ work clothing is generally foreseeable. There often is no doubt that a 

plaintiff, like Kesner, suffering from malignant mesothelioma, has suffered injury due to 

exposure to friable asbestos. Whether exposure from any particular source was a 

substantial factor in causing a plaintiff’s injury may often be questionable (see Rutherford

v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 977), but that uncertainty exists with 

respect to many exposure claims, whether direct or secondary.

Moral blame, the fourth of the factors identified in Rowland, also tends to support 

extension of an employer’s responsibility to more than its employees. Assuming, as we 

must, the truth of Kesner’s allegation that Abex was aware of the risks to those exposed 

directly or indirectly to the asbestos dust generated in its facility and took no steps to 

avoid those risks, certainly such indifference would be morally blameworthy. What Abex 

actually knew and the sufficiency of steps it may have taken to prevent harmful exposure 

goes to the question of whether Abex was in fact negligent as Kesner alleges, but Abex’s 

denials do not bear on the “relatively broad level of factual generality” (Cabral, supra, 51

Cal.4th at p. 772) that bears on the existence of a duty.

Rowland also instructs that we are to consider whether imposing a duty of care 

will advance a policy of preventing future harm. It may be true, as the court observed in 

Campbell, supra, 206 Cal.App.4th at page 33, that asbestos is already the subject of strict 

regulation under both federal and California law. And in Taylor v. Elliott 
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Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 595, the court observed that 

“exposures have already taken place, and in light of the heavily regulated nature of 

asbestos today, it is most unlikely that holding [the supplier of non-asbestos products] 

liable for failing to warn of the danger [of asbestos contained in products manufactured 

and supplied by others] will do anything to prevent future asbestos-related injuries.”

(Fn. omitted.) Yet, asbestos is not the only toxin to which an employer’s obligations 

apply. A rule of law that holds an employer responsible to avoid injury to nonemployees 

who may foreseeably be harmed by exposure to toxins disseminated in its manufacturing 

process can be expected to prevent harm to others in the future. As the Missouri Court of 

Appeals stated in applying California law to a claim of indirect injury against a chemical 

manufacturer, “the imposition of a duty serves as a warning for manufacturers creating 

potentially dangerous products to be cautious.” (Clair v. Monsanto Co., supra, 412 

S.W.3d at p. 309.)

It is the next two Rowland factors—the extent of the burden to the defendant and 

the consequences to the community if the court imposes too broad a duty—that have led 

California courts to limit the reach of liability even for injuries that are foreseeable. The 

leading authority for such a limitation, in a very different context, undoubtedly is Bily v. 

Arthur Young & Co., supra, 3 Cal.4th 370. There, our Supreme Court pointed out that 

“[e]ven when foreseeability was present” it had previously “declined to allow recovery 

on a negligence theory when damage awards threatened to impose liability out of 

proportion to fault or to promote virtually unlimited responsibility for intangible injury.”

(Id. at p. 398.) In that case, the court refused to impose third party liability on financial 

auditors because of “the spectre of vast numbers of suits and limitless financial exposure”

out of proportion to their potential fault. (Id. at p. 400.) Similarly, in refusing to permit an 

unmarried cohabitant to recover damages for emotional distress caused by the negligence 

of another in his immediate presence, the court quoted from Prosser, Law of Torts: “ ‘[I]f 

recovery [for mental distress] is to be permitted, there must be some limitation. It would 

be an entirely unreasonable burden on all human activity if the defendant who has 
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endangered one man were to be compelled to pay for the lacerated feelings of every other 

person disturbed by reason of it, including every bystander shocked at an accident, and 

every distant relative of the person injured, as well as his friends.” (Elden v. Sheldon

(1988) 46 Cal.3d 267, 276, quoting Prosser, Law of Torts (3d ed. 1964) § 55, pp. 353-

354; see also, e.g., Thing v. La Chusa (1989) 48 Cal.3d 644, 668.) 

The need to place a limit on those to whom the duty of reasonable care extends in 

contexts much closer to the situation in the present case was the determinative factor in 

both Campbell and Oddone. Those cases also relied on the final Rowland factor, the 

relative cost and availability of insurance covering the particular risk. The threat of 

unlimited liability, those courts felt, could restrict the ability of employers to obtain 

insurance, while individuals may obtain insurance covering medical expenses incurred as 

a result of illness arising from toxic exposure.

In weighing these competing considerations, the balance falls far short of

terminating liability at the door of the employer’s premises. While foreseeability of harm 

is not in California the exclusive consideration, it is among the most significant, if not the 

single most significant, factor. And there is a high degree of foreseeability of harm from 

secondary, or take-home, exposure to those whose contact with an employer’s workers is 

not merely incidental, such as members of their household or long-term occupants of the 

residence. The weight of this factor is strengthened by consideration of the moral blame 

attributable to disregarding a known risk to others and the important public policy of 

preventing future harm. On the other hand, extending the employer’s duty of care to such 

persons does not threaten employers with potential liability for an intangible injury that 

can be claimed by an unlimited number of persons. Unlike indirect financial loss or 

mental anguish that were of concern in Bily and Elden, mesothelioma (in particular, and

other toxic-related diseases in general) can hardly be claimed by everyone. Nor is there 

reason to believe that manufacturers cannot obtain insurance coverage to protect against 

their liability, while individuals cannot purchase insurance covering loss of income or 

their own pain and suffering resulting from a toxic-induced illness such as mesothelioma.
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In concluding that Abex’s duty of care extends to Kesner, a long-term guest in the 

home of Abex’s employee, we emphasize that our ruling is based on the assumption, 

required by the standard for reviewing the sufficiency of the allegations of a complaint, 

that Kesner’s contact with his uncle was extensive. As to such persons, the forseeability 

of harm is substantial. As to persons whose contact with an employer’s worker is only 

casual or incidental, the forseeability of harm and the closeness of the connection 

between the defendant’s conduct and the plaintiff’s injury may be so minimal as to

produce a different balance of the Rowland factors. We hold that there is a duty under the 

circumstances alleged in the present case, but we do not address other circumstances that 

are not before us.

Finally, in holding that a duty exists in this case, we emphasize the obvious — that 

the existence of the duty is not the same as a finding of negligence. Abex apparently 

disputes many of the facts alleged in plaintiff’s complaint, including the extent of its 

knowledge at the time in question, the reasonableness of the measures it took to prevent 

asbestos from being carried home on the clothing of its employees, and the extent to 

which asbestos from its plant played any role in causing Kesner’s mesothelioma.

Needless to say, these are factual questions left for future determination, as to which we 

express no opinion.

DISPOSITION

The judgment is reversed.

_________________________

Pollak, Acting P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.
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Superior Court of Alameda County, No. RG11578906, John M. True III, Judge.

Counsel for Appellant 

Johnny Blaine Kesner, Jr.:

WEITZ & LUXENBERG, P.C.

Benno Ashrafi

Cindy Saxey

Josiah Parker

Ted W. Pelletier

Counsel for Real Party in Interest

Pneumo Abex LLC:

BRYDON HUGO & PARKER

Edward R. Hugo

James C. Parker

Jeffrey Kaufman

Counsel as Amicus Curiae 

on behalf of Pneumo-Abex, LLC.

GORDON & REES LLP

Don Willenburg

Association of Defense Counsel of Northern 

California and Nevada

HORVITZ & LEVY, LLC

Curt Cutting

Steven Fleishman

Association of Southern California Defense 

Counsel