Employer owes no duty to employee's spouse to prevent employee's exposure to COVID-19 (Kuciemba v. Victory)

Though an employee’s wife may sue the employer in tort, no duty is owed to the spouse to prevent COVID exposure to the employee

A unanimous California Supreme Court has ruled in favor of an employer whose alleged negligence caused the employee to become exposed to COVID-19 who in turn exposed his wife. (Kuciemba v. Victory Woodworks, Inc. (July 6, 2023) S274191.)  Plaintiff and appellant Corby Kuciemba brought suit and defendant and respondent Victory Woodworks filed a demurrer arguing, inter alia, that the wife’s“exclusive remedy” against the employer was a claim under the Worker’s Compensation system.  After the United States District Court for the Northern District of California granted a motion to dismiss the action under Federal Rules of Civil Procedure, rule 12(b)(6), plaintiff appealed to the Ninth Circuit Court of Appeal certified the following questions of law to the California Supreme Court which it deemed necessary to decide the appeal:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? (Id., p. 1.)

The California Supreme Court assumed, for purposes of its opinion, that the facts plead were indeed true.  Plaintiff alleged negligence on the part of the husband’s employer which led to his exposure to COVID at a job site and, in turn, exposure to plaintiff, his wife:

On May 6, 2020, Robert Kuciemba began working for defendant Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. About two months later, without taking precautions required by the county's health order, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. (Id., p. 3; footnotes omitted.)

Plaintiff also alleged she became ill with COVID and therefore required hospitalization.

The Supreme Court concluded the doctrine of Workers Compensation Exclusivity did not bar the wife’s complaint

While it did not ultimately change the outcome of the case, the Supreme Court agreed with appellant on the issue of workers’ compensation exclusivity.  Kuciemba thus held the suit by the wife was not barred by the fact her husband was the employee of the defendant, meaning the employer could be sued by the wife in a tort action.

Of course, in Kuciemba the wife’s suit was arguably “derivative” of her husband’s exposure to COVID.  Nonetheless, the Supreme Court found workers’ compensation was not her “exclusive remedy.”  Her claim was not “derivative” of his injury because, unlike a claim for loss of consortium, the claim of the wife depended on the husband’s exposure to COVID but not actual work-place injury to the husband: 

Accordingly, Victory's sole focus on viral transmission as a factual “but for” cause is misplaced. For the derivative injury rule to apply, Robert's infection must not only be the factual cause of Corby's illness; Corby's claim must also be “legally dependent on injuries suffered by” Robert. Robert's infection may have been a necessary factual step in the causal chain that led to Corby's illness. But it is not necessary for Corby to allege or prove injury to Robert to support her own negligence claim. The difference becomes clear when her claim is compared to a derivative claim like loss of consortium. If Corby had sought recovery for loss of consortium, she would have been required to prove that an injury to her spouse, Robert, in turn injured her by affecting their marital relationship. To support her negligence claim here against Victory, however, she need only show that Robert was exposed to the virus at the workplace and carried it home to her. (Id., p. 11; emphasis added)

This ruling was in accord with See’s Candies, Inc. v. Superior Court (2021) 73 Cal. App. 5th 66 (review denied April, 13, 2022, S272923).  It should be noted the Court of Appeal opinion in Sees was decided after the Ninth Circuit had already certified its question to the California Supreme Court.

However, dismissal of the suit was proper as no duty of due care was owed to the plaintiff by her husband’s employer

The wife being able to sue her husband’s employer in tort, the case then turned upon the second issue related to duty.  The Supreme Court explained that the scope of duty in California is statutorily-defined by Civil Code section 1714(a), stating broadly that “everyone” owes a duty of care “to another:” 

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.

In Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court later clarified, Rowland provides there are several considerations that, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  These “Rowland factors” include, as Cabral explained, all of the following: 

. . . [T]he 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 prevalence of insurance for the risk involved. (Id., p. 771.)

Cabral further explained that despite the landmark holding in Rowland, courts only balance these factors and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing so because “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.’ [Citations.]” (Id., quoting Rowland, 69 Cal. 2d at 112.) 

Kuciemba grouped these Rowland factors into two categories, to wit, those that involved the foreseeability of harm and those involving public policy.  “Foreseeability” factors are forward-looking and the “public policy” factors are backward-looking. (Id., p. 30.)  The Supreme Court found the Rowland factors involving foreseeability indicated a duty of due care was owed to the plaintiff, but that this was not dispositive.  Rather, the factors related to public policy must also be considered, and these factors did not indicate a duty of due care was owed.  For example, consideration of “prevention of future harm” indicated no duty was owed: 

The next Rowland factor, the “policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.”  . . . This factor thus examines both the positive and the negative societal consequences of recognizing a tort duty. Public policy strongly favors compliance with health orders to prevent the spread of COVID-19. Recognizing a duty of care beyond the workplace could enhance employer vigilance in this regard. However, there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure. There is also a possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down. . . . (Id., p. 38; citations omitted.) 

In summary, the economic and other consequences of imposing a duty upon employers to prevent COVID transmission from their employees to third parties indicated no such duty was owed.  As Justice Corrigan stated succinctly, such a duty could not be imposed because of the broad swatch of potential liability which would result:

. . . [A] duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. (Id., p. 38; original emphasis.)

Why the discussion of public policy in Kuciemba is important

The Supreme Court opinion in Cabral has been interpreted by many courts something like this: as a general rule, everyone owes everyone else a duty of due care unless there is a crystal-clear public policy reason for not imposing a duty.  In particular, this approach has been used by many trial courts as an excuse to not consider public policy vis a vis the facts of the case even though such is required to rule upon a demurrer and or motion for summary judgment.

Trial courts therefore refuse to dismiss claims by way of demurrer or motion under the rubric the defendant broadly owes the plaintiff a duty of due care, no matter the tenuous nature of fatal causation.  Causation being a question of fact for the jury, the trial court does not conduct any detailed analysis of the facts of the case in terms of whether public policy indicates there should be liability, instead simply finding the case must proceed to a jury trial. 

As discussed in our prior post, one such example is Razoumovitch v. Hudson Ave. LLC (May 1, 2023) B316606.  The Second District, Division Seven held a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord to prevent injury from re-entering their apartment by attempting to “swing” up to roof ledge not designed to be accessed by tenants.  Razoumovitch concluded the general duty of due care applied because the defense had not shown there were clear public policy considerations that indicated otherwise.  Razoumovitch discussed the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But it also noted that this rule had a crucial exemption and does not apply where the injury is “foreseeable” because plaintiff has a “necessity” to encounter the harm, citing to Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.

While it would be speculative to say whether or not Razoumovitch would have been decided differently had Kuciemba been decided first, there is considerable language in the latter opinion which may be cited to rebut the contention that every defendant owes a duty of due care to every plaintiff with no exception.  Specifically, the Supreme Court in Kuciemba made it plain the burden to society caused by imposing a duty of due care, and, in particular, imposing a duty under novel circumstances, is an important factor for courts to consider.

Defendants may therefore wish to cite to Kuciemba’s discussion as to the scope of the potential liability imposed, as the Supreme Court aptly noted that virtually every employer in the state would become a potential defendant if a duty were owed by employers to family members to prevent employee exposure to COVID.  

The court continued this analysis by noting the impracticability of imposing liability upon employers given they “cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees.” (Id., p. 38.)  Moreover, even though imposing such liability night encourage employers to enact more stringent safety measure, it is also true that measures taken by employers to lessen their liability might impede the delivery of essential services. (Id., p. 43.)  

Courts deciding issues of duty in other contexts should be asked to undertake a detailed public policy analysis -- as part of their ruling upon a demurrer or motion for summary judgment -- with similar rigor rather than simply finding the defendant owes anyone and everywhere a duty of due care under Civil Code section 1714(a).  Where a trial court refuses to do so and the economics of the case warrant such, a writ petition, such as a Petition for Peremptory Writ made pursuant to Code of Civil Procedure section 437c(m)(1), may be filed arguing the trial court did not properly consider the issue of duty as it did not undertake the analysis required by Rowland, Cabral, and Kuciemba.

Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.

Sanctions May Be Imposed for Frivolous Appeal Intended to Delay (Champlin v. Avery)

 

Plaintiff is sanctioned $15,000 for filing an appeal with no merit in an attempt to delay the removal of a mechanic’s lien

The Second District, Division Six, has sanctioned counsel for appellant Avery and his counsel of record, Steven Slavitt, $15,000 for filing and maintaining a frivolous appeal designed for the purpose of delay. (Champlin/GEI Wind Holdings v. Avery (June 2, 2023) B319563.)  Plaintiff and respondent Champlin/GEI Wind Holdings (“respondent”) entered into an agreement to develop a wind energy project in Oahu.  Appellant and defendant Keith Avery (“appellant”) was to receive both a return on capital and a “monthly services fee:”

Appellant, acting through West Wind Works, LLC (3W). . . and respondent entered into a Development Services Agreement (DSA) to develop a wind energy project on Oahu, Hawaii. Pursuant to the DSA and related agreements, appellant had a 5 percent interest in Champlin Hawaii, an entity formed to jointly develop wind energy projects on Oahu. These agreements provided that all distributions from Champlin Hawaii would be made to respondent until respondent received a 15 percent internal rate of return on its invested capital. Then, appellant’s limited liability company, 3W, would participate in distributions. Appellant was paid a monthly services fee, starting at $2,000 per month, with a cap of $250,000. 

About two years after these agreements were made, appellant assigned his 5 percent interest in Champlin Hawaii to respondent. . .  The parties also amended the DSA. . . . [and] provided for a bonus to be paid to appellant after the project achieved its commercial operation date (COD) or was sold, and respondent achieved its 15 percent pre-tax internal rate of return. (Id., pp. 2-3.)

When the project was terminated, appellant maintained he was entitled to additional compensation and filed a mechanic’s lien in Hawaii:

Respondent terminated the DSA in March 2015, after appellant stopped working on project-related matters and the project missed many of its development milestone dates. . . .  In December 2018, respondent sold its interest to a third party. . . resulting in an actual internal rate of return of 8.60676 percent. 

In May 2020, appellant filed a mechanic’s lien in Hawaii, alleging he was entitled to additional compensation under the amended DSA. Respondent filed its complaint against appellant in California. It alleged that appellant breached the DSA by, among other things, failing to mediate before filing the mechanic’s lien and ignoring the DSA’s choice of law and forum selection provisions. Appellant’s cross-complaint alleges only that respondent breached the DSA when it “sold the project . . . without [appellant’s] knowledge or approval,” resulting “in the termination of [appellant’s] compensation . . . .” (Id., pp. 3-4; footnote omitted.)

Respondent brought a motion for summary judgment and/or summary adjudication upon its complaint and/or the cross-complaint.  Appellant, however, did not oppose the motion until the day before the hearing, failing to properly oppose the motion for summary judgment by filing opposing papers 14 days in advance providing admissible contrary evidence cited in a separate statement as to what facts were or were not disputed. (See, e.g., Code of Civil Procedure section 437c(b).)  

Appellant also acknowledged his cross-complaint did not reflect the legal theory upon which his claim was made and made a last-minute oral request to amend the complaint, which was denied.  The Hon. Thomas P. Anderle, of the Superior Court County of Santa Barbara therefore granted summary judgment in favor of respondent upon both the complaint and the cross-complaint.

The actions of appellant in the trial and appellate courts showed a lack of understanding of basic civil procedure

The appellate court affirmed all rulings of the trial court.  Moreover, it found the entire appeal to be without merit and noted the willful ignorance of the appellant and his counsel as to these merits warranted reiteration of the “duties of counsel” toward the court: 

. . .[W]e must opine on the duties of counsel as an officer of the court. We expect counsel to know and follow basic law relating to civil procedure. That did not happen here. We will impose sanctions for the filing of a frivolous appeal from a discretionary trial court ruling. We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal. We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago. [Citations.] We borrow the phrase from our previous opinion: This appeal “was ‘dead on arrival’ at the appellate courthouse.” [Citation.]  This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here. (Id., pp. 1-2.)

As Champlin pointed out, appellant did not make a formal request to amend or otherwise file a motion to amend the complaint.  Appellant thereafter filed a notice of appeal from both the denial of oral request to amend the cross-complaint and the order granting the motion for summary judgment, both of which are non-appealable orders and not final judgments.  Nonetheless, the appellate court utilized its discretion to treat the appeal as if it had been from an actual judgment following the granting of the motion, and therefore considered the merits of the appeal.

Which, of course, the appellate court found lacking.  In particular, the appellate court was critical of the failure of appellant to follow correct procedure in the trial and appellate courts.  This included appellant’s improper reliance upon “facts” which had not been established by citation to a separate statement supported by admissible evidence, such as appellant’s claims that he was entitled to additional monies under the amended DSA.  

Appellant also failed to appreciate the importance of the standard of review, to wit, the manner in which an appellate court looks at trial court rulings.  While an appellate court ordinarily utilized a “de novo” review whereby the appellate court looks at the evidence without deference to the trial court’s determinations, appellant’s failure to provide a proper opposition to the motion for summary judgment made this impossible:  

Trial counsel at the motion for summary judgment also represents appellant in this court. He ignores all of the traditional rules of appeal. He is correct that our review of a grant of summary judgment is de novo. That does not mean we consider counsel’s conclusion that there are issues of fact to be resolved at trial. These “facts” are not in the record, i.e., not in a separate statement of disputed facts or supported by declarations or other evidence. (Champlin, p. 11.)

The appellate court also noted appellant did not understand that the trial court’s ruling denying the motion to amend was left to the sound discretion of that court, meaning it would be disturbed absent an abuse of discretion:

He is also correct in saying that pleadings are to be liberally construed. That does not mean his oral motion to amend the cross-complaint should have been granted. This is a discretionary ruling. Again, counsel does not appreciate traditional rules on appeal. [Citation.]

The Second District therefore upheld the grant of summary judgment, finding appellant was not entitled to any additional monies beyond what he had already been paid.  Writing for a unanimous panel, Justice Yegan explained the appellate court’s finding there was no merit to any of appellant’s claims should “end” this matter and result in the removal of the mechanic’s lien filed in Hawaii.

Champlin is a stark lessen for practitioners who wish to avoid sanctions at the appellate level

One crucial lesson is that if counsel is not fluent in the procedural nooks and crannies of motion practice and has no experience in appellate procedure it is incumbent upon said counsel to seek assistance. (See California Rules of Professional Responsibility, rule 11, setting forth the minimum competency required in a particular matter and noting this competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”)

The appellate court in turn concluded the subject appeal was frivolous, and, even worse, was intended for the purpose of delay.  As Champlin aptly pointed out, despite a choice of law provision that disputes were to be decided in Santa Barbara county, appellant filed a mechanic’s lien in Hawaii.  Worse, the filing and maintenance of the appeal delayed the resolution of the mechanic’s lien, to the detriment of respondent.

Parties who intend to file an appeal where said filing extends the life of a lien or other encumbrance should consider whether this filing will later be viewed as a frivolous tactic designed for purposes of delay.  Counsel should also consider whether they have a good-faith basis to ignore a clearly-worded choice of law provision by making the deliberate choice to file in another jurisdiction.

Here, of course, the failure to consider the merits of the appeal resulted in appellant and counsel being ordered to pay respondent $10,000 and the Clerk of the Court $5,000. [1]  In summary, a 

trial lawyer may need the help of an attorney with particular expertise in 1) civil motion practice, and, 2) appellate procedure, including someone with sufficient experience to determine whether an appeal has sufficient merit to avoid a claim it is “frivolous.” [2]

1 - These sums were chosen to deter future conduct and to compensate for the harm caused by defending against the appeal and the mechanic’s lien.  However, respondent claimed these expenses were much greater than the $10,000 awarded, leaving open the question as to whether respondent may seek the remainder of its attorney fees in a California or Hawaii court.  This is because the opinion does not set forth whether, in addition to its mandatory arbitration and choice of law provisions, the amended DSA contained an attorney fee clause provision.  The opinion is also silent as to whether respondent’s complaint pled entitlement to attorney fees.

2- Such practitioners may include those certified by the California Bar as Certified Specialists in the area of Appellate law.