California Supreme Court to File its Decision in a Derivative Immunity Claim Tomorrow

The California Supreme Court will file its much-anticipated decision regarding KUCIEMBA v. VICTORY WOODWORKS, Case: S274191, on Thursday, July 6, 2023, at 10:00 am (PT). The Court had accepted the request of the US Court of Appeals for the Ninth Circuit to answer a question of state law regarding employers' liability in COVID claims. Briefs are now available online (See below).

The case raises the important question of whether employers can be liable for COVID-19 infections that spread from the workplace to employees' homes. The outcome of this case could significantly impact employers nationwide, as it could establish a new legal precedent for holding employers responsible for the spread of infectious diseases in the workplace.

THE EXCLUSIVITY RULE
Historically, as a matter of public policy to create a safer workplace, the California Supreme Court has permitted claims for household contact in asbestos exposure claims where the employee brought home asbestos on their clothing (occupational exposures) and exposed household members who later contracted asbestos-related diseases. The Exclusivity Rule did not bar such claims. 

In Kuciemba, the plaintiffs are the wife and adult son of an employee who contracted COVID-19 and brought the virus home to them. The plaintiffs allege that the employer's negligence in failing to take adequate precautions to prevent the spread of COVID-19 caused their injuries. The employer argues that it has no legal duty to protect non-employees from the spread of infectious diseases and that the derivative injury doctrine, therefore, bars the plaintiffs' claims.

The US District Court for the North District of California dismissed the case in an unpublished decision, Kuciemba v. Victory Woodworks, Ins, Dist. Court, ND California 2021. An appeal was taken to the Ninth Circuit Court of Appeals. The Circuit Court requested the California Supreme Court to decide two questions of state law: whether derivative injury doctrine barred the spouse's claims and whether the employer owed the employee's spouse the duty to exercise ordinary care to prevent the spread of COVID-19. Kuciemba v. Victory Woodworks, Inc., 31 F. 4th 1268 - Court of Appeals, 9th Circuit 2022.

THE DERIVATED INJURY DOCTRINE
The derivative injury doctrine is a legal principle that prevents plaintiffs from recovering damages for injuries caused by the negligence of another person but also caused by the plaintiff's own negligence. In the context of COVID-19, the derivative injury doctrine would bar the plaintiffs from recovering damages from their employer if they themselves could have taken steps to protect themselves from the virus, such as getting vaccinated or wearing a mask.

The California Supreme Court must decide whether the derivative injury doctrine applies to COVID-19 cases. If the court finds that the doctrine does apply, then the plaintiffs in Kuciemba will likely be barred from recovering damages from their employer. However, if the court finds that the doctrine does not apply, the plaintiffs could recover damages from their employer.

HOUSEHOLD CONTACTS
The concept of litigation by a household contact is longstanding. A negligence action can be brought by the household contact directly against the employer. The case is similar to the claims right by family members of asbestos workers who brought fiber home on their clothes, contaminated the household environment, and subjected the household members to diseases such as asbestosis, lung cancer, and mesothelioma.

NEW JERSEY
In New Jersey, a landowner can be liable for injuries allegedly caused by asbestos exposure experienced by the wife of a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the landowner's premises. Olivo v. Owens-Illinois, Inc., 895 A. 2d 1143 - NJ: Supreme Court 2006.

NATIONAL IMPACT
The outcome of Kuciemba could guide other states nationwide on this issue. If the court finds that employers have a legal duty to protect non-employees from spreading infectious diseases, employers could be liable for COVID-19 infections that spread from the workplace to employees' homes. This could lead to increased safety precautions imposed by employers to protect both their employees and their household contacts.

Therefore, the California Supreme Court's decision in Kuciemba is important. The outcome of this case could guide other state courts, significantly impact employers nationwide, and help shape the legal landscape for COVID-19 litigation.

Related articles:

Household Contacts can sue an employer for harm caused by COVID 12/22/21

Links to Case Filings:

1. Appellants’ Opening Brief, Respondent’s Brief, Appellants’ Reply Brief, and Multiple Appellants’ Letters Filed on April 21, 2022
2. General Docket Filed on April 21, 2022
3. See’s Candy, Inc., Letter Filed on May 11, 2022
4. Appellants’ Letter Filed on May 11, 2022
5. Appellants’ Letter Filed on May 20, 2222
6. Appellants’ Opening Brief on the Merits Filed on July 22, 2022
7. Respondent’s Answer Brief on the Merits Filed on August 22, 2022
8. Appellants’ Reply Brief on the Merits Filed on September 13, 2022
9. Amicus Curiae Brief of Consumer Attorneys of California Filed on October 12, 2022
10. Amicus Curiae Brief of Construction Employers’ Association Filed on October 19, 2022
1. United States Court of Appeals for the Ninth Circuit’s Request to Answer Question of State Law Filed on April 21, 2022
11. Amicus Curiae Brief of The Chamber of Commerce of the United States of America, The National Federation of Independent Business, The National Association of Manufacturers, The California Workers’ Compensation Institute, The California Chamber of Commerce, The Restaurant Law Center, and The National Retail Federation
12. Amicus Curiae Brief of The Chamber of Commerce of the United States of America, The National Federation of Independent Business, The National Association of Manufacturers, The California Workers’ Compensation Institute, The California Chamber of Commerce, The Restaurant Law Center, and The National Retail Federation Filed on October 19, 2022
13. Amicus Curiae Brief of See’s Candies, Inc., and See’s Candy Shops, Inc., Filed on October 19, 2022
14. Amicus Curiae Brief of Civil Justice Association of California Filed on October 19, 2022
15. Respondent’s Notice of Errata Filed on November 14, 2022
16. Respondent’s Response to Amicus Curiae Brief Filed on November 14, 2022
17. Appellants’ Response to Amicus Curiae Brief Filed on November 16, 2022
18. Respondent’s List of Updated Authorities Filed on April 28, 2023

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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

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Author: "Workers' Compensation Law" West-Thomson-Reuters

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Updated: May 21, 2023