California Supreme Court Review: July 2023

As COVID-19 infections, hospitalizations, and emergency room visits are reportedly seeing an uptick this summer for the first time in 2023, California employers will be particularly interested in the California Supreme Court’s recent decision, Kuciemba v. Victory Woodworks, Inc., which examined two questions of California law certified by the United States Court of Appeals for the Ninth Circuit: (1) whether the California Workers’ Compensation Act (“WCA”) bars a negligence claim against an employer brought by the spouse of an employee who contracted COVID-19 in the workplace and then infected his/her spouse, and (2) whether the employer owes a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

In May 2020, Robert Kuciemba (“Robert”) took a job working for Victory Woodworks, Inc. (“Victory”) at a construction site. Two months later, Victory transferred a group of workers, including Robert, to another location where they worked in close contact with others who Victory allegedly had reason to believe had been exposed to the COVID-19 virus. Robert became infected, carried the virus home, and transmitted it to his wife, Corby Kuciemba (“Corby”). Both Robert and Corby were hospitalized for their COVID-19 infections. The Kuciembas sued Victory, and the federal district court concluded on a motion to dismiss that the WCA’s exclusive remedy provisions barred Corby’s claim that she contracted COVID-19 through direct contact with Robert, and that Victory’s duty to provide a safe workplace did not extend to nonemployees who contracted a virus away from the jobsite.

The California Supreme Court began with an examination of the WCA’s statutory scheme. When nonemployees are involved, the “derivative injury doctrine” comes into play, wherein workers’ compensation benefits provide the exclusive remedy if “a third party’s claim [are] legally dependent on an employee’s injury[.]” However, the Court was careful to point out that the exclusivity provisions of the WCA, resulting from a hypothetical bargain between businesses and their employees, would not bar Corby, a third party not part of the bargain, from asserting tort claims against Victory.

Turning to whether Victory had a duty of care to prevent the spread of COVID-19 to its employees’ household members, the Court provided a lengthy clarification on California’s duty of care rule. Established by statute in Civil Code section 1714, the default rule is that “each person has a duty ‘to exercise, in his or her activities, reasonable care for the safety of others.’” Although broad, the rule’s application is limited in that it imposes a general duty of care on a defendant only when the defendant’s “entire conduct created a risk of harm” to the plaintiff. In Kuciemba, the Court concluded that the default duty of care applied in light of plaintiffs’ allegations, which must be accepted as true on a motion to dismiss, that Victory’s affirmative conduct created an unreasonable risk of transmission of COVID-19.

The Court’s conclusion, however, did not end the analysis, as section 1714’s general duty of care is also limited by compelling policy considerations. In this case, the policy considerations of preventing future harm and the anticipated burden on defendants and the community tipped the scale against recognizing a duty of care. The Court noted that “[i]mposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings,” and that “the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services.” The Court thus held that policy considerations require an exception to the general duty of care in the COVID-19 context.

California employers may, for now, breathe a sigh of relief that Kuciemba clarifies and limits their liability for preventing “take-home” COVID-19. In short, California employers do not owe a duty of care to prevent the spread of COVID-19 from the workplace to employees’ household members. In so ruling, the California Supreme Court unanimously curbed a potential torrent of similar litigation from not only an employee’s household members, but potentially anyone else infected directly by employees. This limitation on employers’ liability is especially significant, where there is a two-year window for negligence causes of action. For employees, the Court’s ruling, while disappointing, may potentially lead to further or additional prioritizing of workplace safety requirements in collective bargaining. And despite this victory for employers, California employers should still beware: the decision bars negligence claims from employees’ household members, but does not bar traditional tort claims, nor employees’ own workers’ compensation or negligence claims. Employers would still be wise to follow applicable state and federal guidelines, and implement safety measures to limit the spread of the virus to the extent reasonably possible.