Take-Home Toxin: Following Kesner ’s Lead and Creating a Consistent Framework for Determining Duty Toward Victims of Secondary Asbestos Exposure

Brendan Kelly

The explosion of American industry throughout the twentieth century was accomplished largely on the back of asbestos, a “wonder material” utilized for its unique and versatile characteristics. Asbestos was used for everything from building skyscrapers to making home gardening products, and it was heavily relied upon during World War II because of its rare characteristics—“stronger than steel,” yet flexible, waterproof, fireproof, and easily mined. However, as asbestos’s prevalence increased, so too did awareness of its negative health consequences. Ultimately, the value and utility of asbestos to industry were exceeded by the dangers it posed to human health Asbestos use dramatically declined in the 1980s and 1990s, and while still technically legal in the United States, recent environmental regulations have created a path toward a total ban.8 Despite this decline in usage and its potentially imminent prohibition, the delayed development of asbestos-related disease and illness means that its effects will continue to be realized well into the foreseeable future.

Beginning in the early 1970s, asbestos litigation largely consisted of employees’ claims asserting workplace exposure or consumer product liability claims against manufacturers. However, in the last fifteen years, there has been an increase of so-called “secondary” or “take-home” exposure claims.11 Recently, in Kesner v. Superior Court, the Supreme Court of California ruled that employers and premises owners had a duty to prevent their on-site workers’ household members from being secondarily exposed to asbestos through the workers’ bodies and clothing. There, the court consolidated two conflicting cases from the First and Second Districts of the California Court of Appeal. In resolving the district split, the Kesner court focused primarily on the foreseeability of secondary exposure and limited employer liability to an employees’ household members, as opposed to a wider-reaching group of plaintiffs.

Kesner is the latest addition to an ever-growing list of state court decisions on the issue of secondary asbestos exposure.16 State courts are generally split on whether the employer’s duty should extend beyond the workplace. A small majority of states that have ruled on the matter currently hold that employers are not liable for secondary exposure because they have no relationship with the victim. Conversely, a growing minority of state courts have used reasoning similar to Kesner and found that because takehome exposure was foreseeable, employers had a duty to prevent it.

This Comment will explore the legal history of this area of law, and it will explain how the Kesner decision adds to it. First, it will examine the rise of asbestos regulation by the Occupational Safety and Health Administration (“OSHA”), which ultimately provided the basis for asbestos claims. Second, it will present an overview of the conflict between the state courts on the issue of employer liability for secondary exposure, identifying the leading cases from states on each side of the divide. Third, this Comment will explore Maryland courts’ take-home asbestos decisions by identifying the prominent cases and delving into the reasoning used by the courts. Fourth, this Comment will analyze the Kesner court’s decision in further detail, highlighting the key rationale used by the court in reaching its holding.