California Supreme Court Declines to Impose Tort Duty on Employers to Prevent Spread of COVID-19 to Employees’ Households
The California Supreme Court held last week that a California employer does not owe a duty of care to prevent the spread of COVID-19 to members of an employee’s household. In a unanimous decision, Kuciemba v. Victory Woodworks, Inc., the Court held that although claims brought by an employee’s family member for negligence in relation to the family member contracting COVID-19 from an employee who became infected at work are not barred by the exclusivity provision of the California Workers’ Compensation Act (WCA), public policy considerations weigh against imposing a tort-based duty to non-employees.
Robert Kuciemba began working for Victory Woodworks, Inc. (Victory) at a construction site in San Francisco in May 2020, shortly after the beginning of the COVID-19 pandemic. As an essential business, Victory was permitted to operate subject to health and safety guidelines prescribed by the City and County of San Francisco’s health order in place at the time. Kuciemba became infected with the virus after being required to work in close contact with a group of workers Victory transferred, without taking the required precautions, from another site where they may have been exposed. He carried the virus home to his wife, who developed very serious complications, was hospitalized for several weeks and, at one point, kept alive on a respirator.
The Kuciembas sued Victory, alleging several tort claims based on allegations that Victory did not follow proper protocols and was negligent in their COVID-19 procedures. The District Court granted Victory’s motion to dismiss, and the Kuciembas appealed to the Ninth Circuit, which certified two questions to the California Supreme Court: (1) Whether the exclusivity provision of the WCA bars a spouse’s claim for negligence against an employer, where its employee contracts COVID-19 at the workplace and brings it home to the spouse; and (2) Whether an employer owes a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
First, the Court concluded that the WCA’s exclusivity provision did not bar Mrs. Kuciemba’s negligence claims against Victory. The derivative-injury doctrine dictates that workers’ compensation benefits are the exclusive remedy for third-party claims that are collateral to or derivative of the employees’ workplace injury. The Court noted that the inquiry to determine whether a claim is barred as a derivative depends not upon whether injury to the employee was a “but for” cause of the plaintiff’s injury, but whether the plaintiff is required to prove injury to the employee as part of a legal element of the plaintiff’s own cause of action. Mrs. Kuciemba’s claims were not barred because she sought compensation for her own injuries, independent of, and not legally dependent upon, her spouse’s.
Although Mrs. Kuciemba’s claim was not barred under the WCA, the Court ultimately unanimously concluded that Victory did not owe a duty of care to prevent the spread of COVID-19 to its employees’ households. Even though it was foreseeable that an employer’s negligence in permitting the spread of the virus in the workplace could cause members of the employees’ households to contract the disease, two public policy considerations, in particular, weighed against imposing a duty of care on the employer.
First, such a duty would place an intolerable burden on the employer, where it is impossible to eliminate the risk of infection, and many precautions such as mask-wearing and social distancing depend upon the compliance of individual employees. The Court reasoned that the anticipated cost of prevention and liability might cause some essential service providers to shut down, resulting in negative consequences to the community.
Second, the “potential litigation explosion” would place a significant burden on the judicial system. Potential plaintiffs would be numerous, and the fact-specific disputes would make cases complex and time-consuming to litigate, as they would be difficult to resolve without extensive discovery or expert witness testimony.
In assessing the public policy considerations, the Court noted that social conditions surrounding COVID-19 are likely to continue to evolve, and “the calculus might well be different in the future.” However, this case provides relief to employers for tort-based claims by nonemployees for exposure to the virus. For more information about how this decision affects employers, please contact your favorite CDF attorney.