The California Supreme Court answered two certified two questions in the case of Kuciemba v. Victory Woodworks, Inc. (2023)_Cal.5th_, 2023 WL 4360826. The decision signals a significant development that could have wide-reaching implications surrounding employer liability related to COVID-19. The Court's decision is poised to influence how future cases involving the derivative nature of workplace-related "injuries" from COVID-19 are adjudicated moving forward.

The Certified Questions

  1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?
  2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

Background of the Case

Corby Kuciemba contracted a severe case of COVID-19 during the summer of 2020. She suffered from serious respiratory issues and was hospitalized for over a month. It is believed that her husband, Robert Kuciemba, contracted the virus while working for Victory Woodworks, Inc. and brought the virus home to his wife, Corby. As a result, the Kuciembas brought a claim against Victory Woodworks, which alleged that the business's negligence during the pandemic was a "substantial factor" in causing Corby Kuciemba's illness. The suit claimed that Victory failed to protect its employees by refusing to properly quarantine sick employees and did not follow the public health mandates in place at the time. Victory removed the case to federal court and filed a motion to dismiss. The district court dismissed the claim finding that California's derivative injury doctrine barred the plaintiffs' causes of action and that employers do not have a duty to protect nonemployees from becoming ill due to virus they contracted outside the work premises. On appeal, the panel certified two questions to the Supreme Court of California that it determined were of "significant public importance, but without controlling precedent." Based on the Supreme Court's answers to those questions, the panel decided to affirm the decision of the district court.

Does California's Derivative Injury Doctrine Bar Kuciemba's Claims?

The simple answer is no. Exclusivity provisions of the Worker's Compensation Act (WCA) do not bar a nonemployee’s recovery for injuries that are not legally dependent upon an injury suffered by the employee. In California, the WCA provides the exclusive-remedy for most work-related injuries as well as any third party derivative claims stemming from workplace injuries. Despite this general premise, the court of appeal determined that there was no directly controlling precedent available to decide whether the derivative injury doctrine in California precluded the Kuciembas claims in the current case. This is why it certified this question to the Supreme Court of California for review.
In answering this question, the Supreme Court opined that the Kuciembas were not barred from bringing their claims.

California’s Workers Compensation Statutory System

California employs a workers' compensation statutory system that requires employees to be compensated for injuries that occur within the scope and course of their employment," Lab. Code §3200 et.seq. This statute is premised upon what courts have termed the "compensation bargain." Shoemaker v. Myers (1990) 52 Cal.4th 800, 810. According to the compensation bargain, "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.” (Ibid.) Thus, the WCA limits the possible amount of an employee’s recourse for covered injuries. "The right to recover compensation is the sole and exclusive remedy of the employee or his or her dependents against the employer." (Lab. Code §3600, subd.(a).

When a third party, or someone who is not employed by the business, but claims to have suffered injury due to an injury of the covered employee, they are also generally limited by the provisions of the WCA as an exclusive remedy. Synder v. Michael’s Stores, 16 Cal.4th 991. In other words, a family member's claim for an injury derived from am employee's workplace injury is barred by workers' compensation exclusivity. "However, a family member's claim for her own independent injury, not legally dependent on the employee's injury, is not barred, even if both injuries were caused by the same negligent conduct of the employer." Id. Synder outlined a two prong analysis for determining whether an injury was derivative:

  • It simply would not have existed in the absence of injury to the employee.
  • Applies when the plaintiff’s cause of action, relies on an alleged injury to the employee.

In the case at hand, Corby arguably would not have become infected with COVID-19 and become severely ill, had Victory followed the health protocols in place at the time. The evidence showed that the plaintiffs were taking every precaution in their personal lives and the most probable way she could have been exposed was by way of her husband’s exposure at work. Based on these allegations, the defense argues that Corby's injury is derivative of Robert's and is therefore barred by the derivative injury doctrine.

However, Victory’s linear focus on the transmission of COVID as a factual “but for” cause of Corby’s injury was misplaced according to the Court. Synder required not only that Robert’s infection be the but for cause of Corby’s illness, but also that that Corby’s claim be “legally dependent on the injuries suffered by Robert.” The court reasoned that it was not necessary to prove an injury to her spouse in order to prove that she had suffered an injury due to Victory’s workplace practices during the pandemic. Therefore, the court found that Corby’s negligence was not legally dependent upon any actual injury to her husband. The passing of a harmful germ trough an employee intermediary does not necessarily render the resulting injury derivative and subject to the workers compensation statutory scheme. Due to the fact that Corby’s injury does not require her to show that her husband was injured as a result of Victory’s failure to follow safety guidelines, her claim was not barred by the derivative injury rule.

Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

Victory argued that it did not owe Corby any duty of care because there was no special relationship present between the parties. Common law requires that “the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Dillon v. Legg (1968) 68 Cal.2d 728, 734. In California, the general rule regarding duty can be found in Civil Code Section 1714, subdivision(a), which states, “Everyone is responsible, not only for he 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 injury upon himself or herself.”

The court here noted that even though the parameters of the section 1714 are broad, there are certain limits such as the fact that the defendant must have created the risk of harm that plaintiff suffered, including “when the defendant is responsible for making the plaintiff’s position worse.” Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703. 716. Further, a person who did not create the risk has no duty to offer aid or take any affirmative action to prevent or save the person in danger form the peril. Williams v. State of California (1983) 34 Cal.3d 18.23.

In the case at hand, Corby alleges that Victory conducted its business in violation of the health codes set forth in the City and County of San Francisco during the COVID crisis. She specifically claimed that Victory transferred a number of workers who previously worked offsite to the location where her husband worked after they had been exposed to or were known to have the COVID virus. Her husband was forced to work in close contact with these workers. She claims that because of this her husband was infected with the virus and passed it on to her. The complaint does not allege that Victory was negligent in failing to protect Corby from harm caused by the negligent or intentional misconduct of a third party. Rather, it alleges Corby was harmed by Victory’s own misconduct in transferring potentially infected workers to Robert’s jobsite and forcing Robert to work in close proximity to them. The court looked to the Rowland case for guidance in its evaluation.

Rowland Analysis of Civil Code Section 1714

Exceptions to the general duty of care imposed by Civil Code section 1714 are recognized by courts when they are supported by certain policy considerations. Rowland v. Christian (1968) 69 Cal.2d 108 outlined several considerations for courts:

  • The 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.”

In the case at hand, it was hard to dispute that Victory did not know or foresee that COVID-19 could easily spread. By the time of this incident in 2020, the dangers and contagious nature of COVID-19 were well known. In fact, the City and County of San Francisco ordered that certain safety measures be taken in workplaces that were not shut down completely. These measures included daily screening, social distancing, removal of workers’ exhibiting symptoms, providing workers with personal protective equipment and providing ventilation to the work area as much as possible. The court reasoned that these government orders put Victory on notice that COVID could not only be transmitted at the workplace, but also could be taken home and transmitted to persons who came into contact with the employee.

Victory argued that despite this fact, COVID-19 was present virtually everywhere and it proved impossible to show that the source of the non-employees infection originated form the employee carrying it home. The court reasoned that although it is true that COVID-19 could result from multiple sources, the fact remains that it was reasonably foreseeable to Victory that the virus may be spread by one of their employees and that by not following the health protocols in place, they increased this risk. Therefore, the court concluded that the risk of harm to Corby was foreseeable.

Rowland’s Policy Factors

Rowland also recognizes that even if the foreseeability factors lean in favor of finding a duty on the part of the defendant, “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.” Erlich v. Menezes (1999) 21 Cal.4th 543, 552.

The court discussed the fact that Victory as the employer had control over the work environment and the responsibility to oversee the workplace. The court concluded that it had some moral blame in failing to follow health protocols. Public policy looks favorably upon compliance with health orders to prevent the spread of COVID-19. However, the court also recognized that there is only so much that an employer can do. There was no way to absolutely prevent infection or the spread of the virus to members of an employee’s household. It also depends upon compliance by the employee. Employers have no control over what happens outside the workplace, or how employees act at home or in public to protect themselves from the virus.

Imposing a tort duty upon employers not covered by workers’ compensation “could lead some employers to close down, or impose stringent workplace restrictions that significantly slow the pace of work,” the court noted. “The economic impact of such changes could be substantial and is difficult to forecast.” The possibility of this negative impact must be weighed against imposing a tort duty on the employer.

This potential negative impact was only exacerbated when the court considered extending the duty to household members. The court acknowledged that it was impossible for employers to eliminate the risk of infection even with the implementation of best practices. Given this, the court feared that “the prospect of liability for infections outside the workplace could encourage employers to adopt precautions that unduly slow the delivery of essential services to the public” and otherwise have a harmful impact on society as a whole. “A finding of duty may be inappropriate if its recognition would deter socially beneficial behavior.” Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 402.

The court looked to several asbestos cases for guidance on how to handle infectious diseases brought home by employees to their household members. It quickly found however, that COVID is different than asbestos exposure, or other contagious diseases in its high transmissibility rate, even with a brief exposure. The pool of potential plaintiffs who could bring suit against various businesses and employers would prove astronomical. As the court stated in Ruiz v. ConAgra Foods Packaged Foods LLC (E.D.Wis. 2022) 606 F.Supp.3d 881, 888, stated, “Ultimately, the limited transmissibility of asbestos provides a natural curb on the pool of potential plaintiffs. With COVID-19, by contrast the pool of potential plaintiffs isn’t a pool at all- it’s an ocean.”

Finally, the court noted that Imposing a duty on employers to prevent exposure to COVID-19 to household members would not only place an insurmountable burden on employers, but would also impose a significant burden on the court system called upon to handle all of these potential claims. It could also impact the availability and quality of insurance coverage available to employers attempting to obtain coverage for this increased liability and cost.

Therefore, the answer to the second question certified to the Supreme Court was also no. Although it was foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 may cause members of employees’ households to contract the disease, recognizing a duty of care to non-employees in this context would impose an intolerable burden on employers and society in contravention of public policy. These and other policy considerations led the court to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.

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