California High Court May Take Another Look at Employer’s Liability for COVID-19 Contracted by Employee’s Family Member
In an important case that may define—at least in California—an employer’s responsibility for injuries sustained when an employee’s family member contracts COVID-19 as a result of an infection that is tied to the employee’s own work-related exposure to the virus, the Ninth Circuit Court of Appeals, in Kuciemba v. Victory Woodworks, Inc., No. 21-15963, 2022 U.S. App. LEXIS 10786 (9th Cir., Apr. 21, 2022), certified two questions to the Supreme Court of California, to wit:
- 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?
- 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?
Readers will recall that just eight days earlier, the California Supreme Court denied review in a case with similar facts [See's Candies, Inc. v. Superior Court, 73 Cal. App. 5th 66, 288 Cal. Rptr. 3d 66, 87 Cal. Comp. Cases 21 (2021), rev. denied, 2022 Cal. LEXIS 1976 (Apr. 13, 2022). The high court’s decision in See’s Candies left intact a decision by the California Court of Appeal that held the state’s derivative injury rule does not bar claims brought by an employee’s spouse for injuries arising from a workplace COVID-19 infection. Since the decision by the federal district court in Kuciemba came to the opposite conclusion [see Kuciemba v. Victory Woodworks, Inc., 2021 U.S. Dist. LEXIS 88997 (N.D. Cal. May 10, 2021), it appears likely the state’s Supreme Court will take on the questions certified to it by the Ninth Circuit.
Background
Robert Kuciemba (“Robert”) began working for Victory Woodworks, Inc. (“Victory”) in San Francisco sometime after the COVID-19 outbreak and after various emergency health orders were put in place in and around San Francisco. Robert and his wife, Corby Kuciemba (“Corby”) contend that Robert was forced to work in close contact with employees who had been transferred to his work site from one that had been infected with COVID-19.
According to the Kuciembas, Robert became infected with COVID-19 as a result of his contact with infected co-employees and Corby developed COVID-19 from her contact with Robert in their home. Corby was more than 65 years old and was at a high risk of COVID-19 due to age and health. Corby was hospitalized for more than a month after contracting COVID-19 and was kept alive on a respirator.
The Kuciembas filed suit against Victory in California Superior Court, alleging that Victory caused Corby’s injuries by violating the appropriate health order in effect. Corby also asserted state law claims for negligence, negligence per se, and premises liability negligence while Robert brought a claim for loss of consortium. Victory removed the case to federal district court and moved to dismiss.
The district court granted Victory’s motion, holding (as relevant here) that Corby’s claims against Victory were barred by California’s derivative injury doctrine and, in the alternative, that Victory did not owe a duty to Corby. The Kuciembas appealed to the Ninth Circuit.
The Derivative Injury Doctrine
The Ninth Circuit Court initially provided a short statement regarding California’s version of the derivative injury doctrine, noting that not only is the state’s Workers’ Compensation Act the sole and exclusive remedy against an employer for work-related injuries sustained by employees, it is also deemed “the exclusive remedy for certain third party claims deemed collateral to or derivative of” an employee’s work-related injuries [quoting Snyder v. Michael’s Stores, Inc., 945 P.2d 781, 784 (Cal. 1997)].
Practitioners may recall California’s Synder decision [see Larson’s Workers’ Compensation Law, § 100.05 for an extensive discussion of the case]. There, a minor and her mother and father sued the mother’s former employer, alleging that the employer negligently allowed a janitorial contractor to operate a propane-powered floor-buffing machine in the store without adequate ventilation, resulting in hazardous levels of carbon monoxide. They further alleged that both the mother and the minor, who was then in utero, were exposed to toxic levels of carbon monoxide. The plaintiffs alleged, in relevant part, that the minor suffered permanent damage to her brain and nervous system as a result of the carbon monoxide exposure.
The dominant issue in Snyder was whether the minor’s civil action against her mother’s former employer was barred by the derivative injury doctrine. The Snyder Court held that it was not so barred.
See’s Candies Decision Relied on Snyder Decision
The Ninth Circuit noted that in See’s Candies, the California Court of Appeal had largely agreed with the Kuciembas’ interpretation of Snyder [readers should note that the federal district court in Kuciemba did not mention Snyder in its short order dismissing the case on, inter alia, derivative injury grounds]. The Ninth Circuit added, however, that Snyder dealt with “very different facts” from those present in the Kuciemba case. It also stressed that the Court of Appeal’s reasoning in See’s Candies—although instructive—did not eliminate the need for clear guidance from California’s highest court. Faced with uncertain precedent regarding the reach of California’s derivative injury doctrine, the Ninth Circuit concluded the question was suitable for certification.
Comment
As I mention above, it seems likely that the California Supreme Court will take up the questions proferred to it by the Ninth Circuit. The Court of Appeals decision in See’s Candies is completely inconsistent with the decision of the federal district court in Kuciemba. Most of you will likely agree when I say that the California Supreme Court will likely find Corby Kuciemba’s claim is not barred by the derivative injury doctrine.
Kuciemba presents an additional issue not present in See’s Candies, however. In Kuciemba, the employer also argued that its duty to provide a safe workplace to its employees did not extend to non-employees who, like Corby Kuciemba, contract a viral infection away from those premises. It will certainly be interesting to see how the California Supreme Court comes down on that issue. Remember that in Snyder, the minor’s exposure to the carbon monoxide occurred in utero, i.e. while the minor was present on the employer’s premises—not at home. Will that important factual distinction make a difference? We’ll see.