On July 6, the California Supreme Court issued its opinion in Kuciemba v. Victory Woodworks Inc., holding that employers do not owe a duty of care to prevent the spread of COVID-19 to nonemployee household members who contracted the virus as a result of exposure to an employee who, in turn, contracted the virus at work.[1]
This decision is undoubtedly good news for employers, who for years now have been operating under a concern of potential tort liability for injuries that they, to a large extent, cannot control.
In our view, the court's decision reflects a sensible policy position that tort liability schemes are a poor mechanism for handling the fallout from a global pandemic.
While the court's employee-friendly bona fides are well established, Kuciemba recognizes a commonsense liability boundary where the implications of recognizing a duty of care for tort purposes would do far more harm than good.
Background
Victory Woodworks employee Robert Kuciemba contracted COVID-19 in the summer of 2020, allegedly as a result of his employer's failure to take appropriate precautions at his job site.
Kuciemba's wife, Corby, contracted the virus shortly thereafter, became seriously ill and was hospitalized for several weeks.
The Kuciembas sued Victory in October 2020. Corby asserted claims for negligence, negligence per se, premises liability and public nuisance; Robert added a claim for loss of consortium.
Victory removed the case to federal court and then filed a motion to dismiss, which the Northern District of California granted with leave to amend. The Kuciembas omitted the public nuisance claim in their amended complaint, and the court granted Victory's renewed motion to dismiss, this time without leave to amend.
The Kuciembas appealed, and the Ninth Circuit certified two questions to the California Supreme Court: (1) whether workers' compensation exclusivity bars an employee's spouse from pursuing COVID-19-related tort claims against their spouse's employer; and (2) whether an employer owes a duty of care to a nonemployee spouse to prevent the offsite spread of COVID-19.
In the recent decision, the California Supreme Court answered "no" to both questions, holding that the derivative injury rule under California's workers' compensation law did not bar Corby's negligence claim against Victory under the circumstances of that case, and more generally, employers do not owe a duty of care to prevent the spread of COVID-19 to employees' household members.
The California Supreme Court Decision
Having found that Corby Kuciemba's recourse was not limited by California's workers' compensation scheme — because if it were, the court's analysis would have abruptly ended — the court considered whether Victory had a legal duty to her, such that it could have tort liability for her COVID-19 infection and subsequent hospitalization.
The court's decision in that regard was driven by practical considerations. The court commented that, even though moral blame and foreseeability considerations "largely tilt[ed] in favor of finding a duty of care," the "significant and unpredictable burden" on California businesses, courts, public services and the community at large cut the other way.
The court specifically noted that finding such a duty would "throw open the courthouse doors to a deluge of lawsuits" that would be hard to prove, difficult to resolve efficiently and incapable of collective or class resolution. In other words, due to the scale of COVID-19 and the potential ocean of plaintiffs, finding that Victory did not owe a legal duty of care to Corby was the right thing to do.
The court's decision makes sense. Forcing employers to operate under such conditions would be unrealistic.
One can certainly imagine the price increases consumers would have to bear to offset employers' operational risk. And finding a trial date in California courts is hard enough without adding potentially millions of hard-to-prove and hard-to-dispose of tort lawsuits.
The court seemed to acknowledge that there were no good — or good enough — policy reasons for holding employers liable for household members' COVID-19 infections, while also acknowledging that the practical realities supported the decision.
What This Means for Employers
The Kuciemba decision should not be interpreted as a sea-change moment for the California Supreme Court.
It is a practical, appropriate response to a global problem that would be unfair and impractical to ask employers to bear. Nor does the Kuciemba decision change employers' take-home liability in other contexts.
The court cabined its holding by distinguishing between, on one hand, contagious diseases with multiple potential exposure vectors and broad reach, and, on the other hand, other toxic exposures — e.g., asbestos — that involve a smaller pool of potential plaintiffs and more direct transmission lines. Thus, employers' take-home liability in the toxic tort context will probably not change.
One thing that seems to get lost in the moment, given the focus of the past three years, is that COVID-19 is not the last pandemic that U.S. employers will have to navigate. This is a fact, not pessimism.
According to the National Institutes of Health, in the past two decades alone, numerous other large-scale transmissible virus events constituting pandemics have occurred, including SARS, MERS, H1N1, Ebola, Zika and bird flu.
It remains to be seen whether Kuciemba establishes an employer liability benchmark of sorts for virus cases, and future litigation will inevitably test the lingering question of what scope or scale of social impact is enough to trigger application of the decision.
It is conceivable that the same logic underlying Kuciemba might also make sense in nonpandemic contexts, but the decision did not crack open a door so that employers could swing it wide open.
Employers should also acknowledge that although Kuciemba is a welcome development, few things in this world are absolute.
Several downstream possibilities to offset the decision's potential impact on employees' family members might include requests for better quality insurance or broader coverage, expanded sick days or leave time, incorporation of this particular risk into collective bargaining agreements, or even state or federal legislation.
Proactive employers will likely have happy, healthy workforces. Reactive employers may not be as well positioned.
In California, Kuciemba will result in numerous requests for dismissal and motions for summary judgment. On a national scale, the picture has yet to come into focus. Many states have not considered this issue.
A follow-the-leader approach is familiar for these types of issues, so in the near future, we expect to see some states follow the Kuciemba court's logic. Also, because the decision came about through certified questions from the U.S. Court of Appeals for the Ninth Circuit, it may receive positive attention and traction in federal courts.
The Kuciemba decision is by no means a license for employers to stop taking appropriate precautions to protect their employees or prevent the spread of COVID-19 in the workplace, consistent with relevant public health orders and guidance.
However, it reflects a sensible conclusion of at least one boundary for employers' potential liability for COVID-19 related claims.
Reference
[1] Kuciemba v. Victory Woodworks, Inc. (Case No. S274191).
Reprinted with permission of Law360.
