Toxic Exposure: Preconception Duty

Elsheref v. Applied Materials, Inc., (Second District, January 27, 2014) 223 Cal.App.4th 451,167 Cal.Rptr.3d 257, 14 Cal. Daily Op. Serv. 1015, 2014 Daily Journal D.A.R. 1061

The parents of a child who was born with a number of severe birth defects filed an action on his behalf against the father’s employer, a semiconductor manufacturer, alleging that his injuries were caused by the father’s exposure to toxic chemicals in the workplace. Asserting causes of action for negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation, premises liability, and strict products liability, the plaintiff alleged that his father’s work with tools containing mercury and ethylene glycol, as well as tools emitting ionizing radiation, exposed him to teratogenic, genotoxic, and reproductively toxic chemicals and processes.

The employer moved for summary adjudication, arguing that it did not owe a duty of care to the plaintiff for preconception injuries.  The trial court granted summary adjudication but the court of appeal reversed as to the strict products liability cause of action. The court held that although the defendant owed no owe a duty to the plaintiff, the absence of a duty was not fatal to strict products liability claim:

Some of those factors weigh in favor of finding a duty on the part of AMI, including the policy of preventing future harm and the “moral blame” factor, given plaintiffs’ allegations that AMI had actual or constructive knowledge of the harmful consequences of its conduct. … But the remaining factors weigh more strongly against a finding of duty here. We conclude there was not a “close” connection between AMI’s conduct and Waleed’s injuries. … AMI’s allegedly culpable conduct all relates to its treatment of Waleed’s father, Khaled, making the connection between that conduct and Waleed’s injury somewhat attenuated. With respect to the burden on AMI, we are cognizant that “imposing a duty [on employers] toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope.” …In view of all of the Rowland factors discussed above and the “overwhelming need to keep liability within reasonable bounds,” we conclude a common law duty of care should not be imposed on AMI in the circumstances of this case.

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The services plaintiffs allege AMI undertook to provide were not provided to Waleed, but to Khaled. Nor did those services directly concern Khaled’s reproductive health, as plaintiffs claim. …Under these circumstances, we cannot find AMI assumed a duty to safeguard Waleed’s health. To conclude otherwise would mean that every employer that complies with state law requiring the protection of employee health and safety thereby assumes a duty to protect the health and safety of its employees’ family members. For the reasons stated above, we decline to expose employers to such potentially boundless liability.

Duty Is Not An Element of Plaintiffs’ Strict Products Liability Claim…Milwaukee Tool did not hold that the existence of a duty is an element of a strict products liability claim that a plaintiff must plead and prove. To the contrary, the court recognized that “strict products liability causes of action need not be pled in terms of classic negligence elements (duty, breach, causation and damages).”

 … [T]his court cited Milwaukee Tool for its conclusion that the duty analysis may properly be applied to decide whether a defendant may assert assumption of the risk as a defense to a strict products liability claim. We did not intend to suggest that duty is an element of a strict products liability claim that must be pleaded and proved, and we disavow any such reading of that case. For the foregoing reasons, we conclude that the lack of any preconception duty is not fatal to Waleed’s strict products liability claim.