How far does an employer's duty of care extend? According to a recent Washington Court of Appeals decision, it may reach beyond the employee, the workplace, and even conception itself.
In Bauer v. The Boeing Company, the court held an employer may owe a reasonable duty of care to an employee's not yet conceived child when workplace exposures allegedly damage the employee's reproductive system and later result in birth defects. The court further held that the child's claims were not barred by the exclusivity provision of Washington's Industrial Insurance Act because the child suffered injuries separate and distinct from those allegedly sustained by the employee.
The decision represents a significant development in workplace toxic exposure litigation. While the court emphasized that any such duty remains constrained by traditional principles of foreseeability, the ruling confirms that Washington negligence law can reach injuries that manifest in a later-conceived generation.
The Allegations
Teela Bauer sued as guardian of her minor son, Milo Bauer, and together with her husband, Thomas Bauer, asserted negligence claims against Boeing and other defendants. According to the complaint, Thomas worked as an electrical installer at Boeing's Everett manufacturing facility beginning in 2011. The complaint alleged his work regularly exposed him to volatile organic solvents, heavy metals, and other hazardous substances capable of causing genetic, epigenetic, and reproductive harm.
Milo was conceived while Thomas was employed at Boeing and was born in 2017 with numerous serious congenital conditions, including congenital heart anomalies, tricuspid atresia pulmonary stenosis, congenital hip dysplasia, an-rectal malformation, urethral duplication, and spinal tethering. The complaint further alleged that Boeing was aware for decades of scientific literature linking paternal chemical exposure to reproductive harm and birth defects. The Bauers asserted that Boeing failed to adequately warn, educate, monitor, investigate, and otherwise protect workers from those hazards.
Boeing moved to dismiss under CR 12(b)(6), arguing that it owed no legal duty to Milo because he had not yet been conceived when the alleged exposures occurred. Boeing also argued that any claim was barred by the exclusivity provisions of the Industrial Insurance Act. The trial court denied the motion and certified two questions for appellate review. The court of appeals answered both in the plaintiffs' favor.
Duty Beyond Conception
The court began with familiar negligence principles. To establish negligence, a plaintiff must prove duty, breach, injury, and proximate cause. Degel v. Majestic Mobile Manor, Inc., 129 Wn. 2d 43, 48, 914 P.2d 728 (1996). Whether a duty exists is a question of law informed by logic, common sense, justice, public policy, and precedent. Volk v. DeMeerleer, 187 Wn.2d 241, 263, 386 P.3d 254 (2016).
Boeing characterized the issue as whether Washington recognizes a "preconception duty" in the employment context. The court rejected that framing, explaining that the proper inquiry was whether Boeing owed Milo a duty of reasonable care and whether Milo was a foreseeable plaintiff.
The court found substantial support in the Washington Supreme Court's decision in Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 656 P.2d 483 (1983). There, the court recognized that a duty may extend to persons not yet conceived at the time of the negligent act or omission. Importantly, the Harbeson court stated that such a duty is limited by foreseeability and may apply to "a provider of healthcare, or anyone else." Id. at 480. Although Harbeson arose in the context of reproductive health care, the Court of Appeals declined to confine its reasoning to that setting.
The court also relied on Washington decisions recognizing liability for take-home asbestos exposure. In Lunsford v. Saberhagen Holdings, Inc., 125 Wn.App.784, 106 P.3d 808 92005), and Arnold v. Saberghagen Holdings, Inc., 157 Wn.App. 649, 240 P.3d162 (2010), Washington courts recognized duties extending beyond the worker to family members exposed to hazards brought home from the workplace. Taken together, these authorities persuaded the court that Washington law does not impose a categorical bar to claims by later-conceived children.
Public Policy Considerations
The court also found support in Washington's longstanding commitment to worker health and safety. Article II, section 35 of the Washington Constitution directs the Legislature to enact laws protecting workers employed in occupations dangerous to life or health. The Washington Supreme Court has characterized this provision as establishing a fundamental right to workplace health and safety protections. Martinez-Cuevas v. Deruyter Bros. Dairy, Inc., 196 Wn.2d 506, 520, 475 P.3d 164 (2020). The court reasoned that recognizing liability under the circumstances alleged in the complaint advances traditional tort principles by allocating the costs of workplace injuries to the entities best positioned to prevent them.
The decision also rejected Boeing's policy concerns regarding the expansive liability, stale claims, and complex scientific proof. Those concerns, the court explained, do not justify a categorical rule eliminating duty. Plaintiffs still bear the burden of proving negligence, causation, and damages. Meyer v. Burger King Corp., 144 Wn.2d 160, 170, 26 P.3d 925 (2001).
Foreseeability Remains the Limiting Principle
Although the court recognized a duty, it repeatedly emphasized that foreseeability remains the principal limitation on liability. Under Washington law, the injury must fall within a general field of danger created by the defendant's alleged negligence. Maltman v. Sauer, 84 Wn.2d 975, 980-81, P.2d 254 (1975).
Accepting the allegations as true, the court concluded that Milo fell within the foreseeable class of persons potentially harmed by reproductive toxicity. The complaint alleged not merely exposure to hazardous substances, but exposure to substances known to create reproductive risks. The injuries alleged were therefore among the very hazards that Boeing allegedly knew or should have known could result from such exposure. The court further observed that workers commonly have families and children. Limiting the duty to an employee's immediate offspring keeps the scope of liability tethered to foreseeable plaintiffs rather than an indeterminate class.
The Industrial Insurance Act Did Not Bar the Claim
The Court next addressed whether the exclusivity provision of the Industrial Insurance Act barred Milo's claim. Washington workers' compensation system provides the exclusive remedy for workplace injuries. The exclusivity provision bars claims that are derivative of an employee's compensable injury. West v. Zeibell, 87 Wn.2d 198, 550 P.2d 522 (1976). the Court of Appeals concluded that Milo's claims were not derivative.
The court found Meyer v. Burger King Corp., controlling. There, a pregnant employee suffered a workplace injury that allegedly caused severe neurological injuries to her unborn child. The Washington Supreme court held that the child's injuries were independent of the mother's injuries and were therefore not barred by the Industrial Insurance Act. Meyer, 144 Wn.2d at 165-69.
Applying the same reasoning, the court concluded Thomas's alleged injury and Milo's alleged injury were separate and distinct. Thomas allegedly suffered damages to his reproductive system. Milo allegedly suffered congenital defects. Although casually related, the injuries were legally independent. The Industrial Insurance Act does not bar claims by third parties who themselves sustain separate injuries merely because those injuries can be traced to an employee's workplace exposure.
Looking Ahead
The decision does not determine whether Boeing was negligent or whether any workplace exposure caused Milo's condition. Those questions remain for further litigation. What the opinion does establish is that Washington courts will evaluate these claims through ordinary negligence principles rather than categorical limitations on duty. When workplace exposures allegedly create foreseeable risks to future offspring, the fact the child was not yet conceived ta the time of exposure does not, standing alone, defeat the claim.
For employers confronting claims involving toxic exposures, reproductive injuries and emerging scientific evidence concerning genetic and epigenetic harm, Bauer signals that the boundaries of workplace liability may extend further than previously assumed. At the same time, the court made clear that traditional safeguards of negligence law, particularly foreseeability and proof of causation, remain the mechanisms that define and limit the scope of that liability.
