In July 2023, the California Supreme Court in Kuciemba v. Victory Woodworks, Inc.[1] answered two certified questions from the Ninth Circuit Court of Appeals. The Supreme Court concluded: (1) if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative-injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer; but (2) an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
Background
Near the end of April 2020, the City and County of San Francisco’s health officer issued an order prescribing health and safety guidelines to prevent the spread of COVID-19 at construction jobsites. In May 2020, Robert Kuciemba began working for Victory Woodworks, Inc. (“Victory”) at a construction site in San Francisco. Approximately 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. He carried the virus home and transmitted it to his wife, Corby. Corby was hospitalized for several weeks and, at one point, was kept alive on a respirator.
In October 2020, the Kuciemba’s sued Victory in superior court. Victory removed the case to federal court and moved to dismiss. The District Court granted themotion with leave to amend. Plaintiffs filed an amended complaint reasserting, among other things, Corby’s claims for negligence, negligence per se, and premises liability. The District Court granted a renewed motion to dismiss, but without leave to amend, concluding: (1) claims that Corby contracted COVID-19 through direct contact with Robert were barred by exclusive remedy provisions under the California Workers’ Compensation Act (“WCA”; Labor Code section 3200 et seq.); (2) claims that Corby contracted COVID-19 through indirect contact with infected surfaces were subject to dismissal for failure to plead a plausible claim; and (3) to the extent the claims were not barred by statute or insufficiently pleaded, they failed because Victory’s duty to provide a safe workplace did not extend to nonemployees, like Corby, who contracted a virus away from the jobsite. The Kuciembas appealed.
The Ninth Circuit Court of Appeals determined that the case involved questions of California tort law of significant public importance but with no controlling precedent, and certified two questions to the California Supreme Court:[2]
- If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (“WCA”; Labor Code section 3200 et seq.) bar the spouse’s negligence claim against the employer?
- Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?
In June 2022, the California Supreme Court agreed to answer the certified questions.
Discussion
The Supreme Court of California first explained that the WCA is a comprehensive statutory scheme through which employees may receive prompt compensation for costs related to injuries incurred in the course and scope of their employment. Under this “compensation bargain” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16), “the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Id.) In this scheme, an employer’s compensation obligation is “in lieu of any other liability whatsoever to any person” (Labor Code section 3600(a), italics added), and such compensation is “the sole and exclusive remedy of the employee or his or her dependents against the employer” (Section 3602(a), italics added). “This statutory language conveys the legislative intent that ‘the work-connected injury engender[] a single remedy against the employer, exclusively cognizable by the compensation agency.’” (Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 997.)
The Court noted that in general, workers’ compensation benefits provide the exclusive remedy for third party claims if the asserted claims are “collateral to or derivative of” the employee’s workplace injury (Id.), sometimes called the derivative-injury doctrine. Victory proposed a rule for derivative injuries based on factual causation. They asserted that if a third party’s injury would not have occurred but for an injury to the employee, it is derivative of the employee’s injury for workers’ compensation purposes. Here, because Corby would not have become ill with COVID-19 but for her husband Robert’s infection at work, Victory argued Corby’s injury was derivative of Robert’s and her claims were therefore barred by workers’ compensation exclusivity.
The Supreme Court disagreed, stating that, without more, a mere causal link between a third party’s personal injury and an employee’s injury was not sufficient to bring the third party’s claim within the scope of the derivative-injury rule. The Supreme Court stated that Snyder did not hold that the exclusivity bar arises any time an employee injury is a “but for” cause of injury to a third party. Instead, the pertinent question is whether the plaintiff’s claim is logically or “legally dependent” on that employee injury. (Snyder, supra, 16 Cal.4th at p. 999, see id. at pp. 1000, 1005.)
The Court explained that for the derivative-injury rule to apply here, 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. (Snyder, supra, 16 Cal.4th at p. 1000, italics added.) Because Corby’s negligence claim did not require that she allege or prove that Robert suffered any injury, the Supreme Court concluded that her claim was not barred by the derivative-injury rule.
Turning to the second certified question, the Supreme Court addressed whether California law imposes a duty of care on employers to prevent the spread of COVID-19 to their employees’ household members. The Court observed that the “general rule” of duty in California is established by statute. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) Civil Code section 1714, subdivision (a) states 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 injuryupon himself or herself.”
Here, plaintiffs alleged that Victory created a risk of harm by violating the City and County of San Francisco health order designed to limit the spread of COVID-19 when Victory transferred a group of previously off-site workers when there was reason to believe they had been exposed to the SARS-CoV-2 virus. Robert’s work placed him in close contact with these newly arrived workers. As a result, he was infected with the virus and passed it to his wife Corby. The Supreme Court found that these allegations thus raised a claim that Victory violated its obligation “to exercise due care in [its] own actions so as not to create an unreasonable risk of injury to others.” (Lugtu, supra, 26 Cal.4th at p. 716; Section 1714(a).) As to whether Civil Code section 1714 imposes a duty of care on employers to prevent the spread of COVID-19 to employees and their household members, the Supreme Court concluded that the default rule of duty applies in the COVID-19 context where plaintiffs had alleged that Victory, through its own actions, created an unreasonable risk of the disease’s transmission.
However, the Court observed that Rowland v. Christian (1968) 69 Cal.2d 108 identified several considerations that may, on balance, justify a departure from Section 1714’s default rule of duty: “[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.” (Rowland, at p. 113.)
Although the Supreme Court determined that Rowland’s foreseeability factors generally weighed in favor of recognizing a duty here, the Court noted that “[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 cost-internalization values of negligence liability.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 502.)
The Supreme Court concluded that the policy factors of preventing future harm and the anticipated burdens on defendants and the community weighed against imposing such aduty.
Here, the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large weighed in favor of an exception to the general rule of Civil Code section 1714. The Court explained that imposing on employers a tort duty to each employee’s household members to prevent the spread of the highly transmissible COVID-19 virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.
The Supreme Court thus answered the Ninth Circuit’s questions as follows:
(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative-injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer.
(2) An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
Because Victory owed no duty to Corby, the Ninth Circuit Court of Appeals affirmed the District Court’s dismissal of the Kuciembas’ complaint.[3]
HOW THIS AFFECTS YOUR AGENCY
Agency employers may appreciate the Supreme Court’s refusal to impose a duty of care on California employers to prevent the spread of COVID-19 to employees’ household members. Had the California Supreme Court imposed such a duty, it would have created expansive liability exposure to California employers – something the Court was unwilling to do.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] Kuciemba v. Victory Woodworks, Inc., 2023 Cal. LEXIS 3733 (July 6, 2023)
[2] Kuciemba v. Victory Woodworks, Inc., 31 F.4th 1268 (9th Cir. 2022)
[3] Kuciemba v. Victory Woodworks, Inc., 2023 U.S. App. LEXIS 18920 (9th Cir. July 25, 2023).