On July 6, 2023, the California Supreme Court issued its much-anticipated decision in Kuciemba v. Victory Woodworks, Inc., (“Kuciemba”). Much to the relief of California employers, the Kuciemba Court concluded that employers owe no duty to prevent “take home” cases of COVID-19. Addressing two questions certified from the United States Court of Appeals for the Ninth Circuit, the Court in Kuciemba held that while the exclusivity provisions of the California Worker’s Compensation Act (“WCA”) do not bar a non-employee’s recovery for injuries that are not legally dependent upon an employee’s injury, the potential burden on employers, the judicial system, and ultimately, the community, mandated a finding that employers do not owe a duty of care to prevent the spread of COVID-19 to employees’ household members. With this ruling, the Court effectively put an end to a potential floodgate of COVID-19 litigation against California employers.
Relevant Factual and Procedural Background
Plaintiffs, husband and wife Corby and Robert Kuciemba, filed suit in California state court for injuries they allegedly suffered when both contracted COVID-19. The allegations, which were deemed true, were that Robert contracted COVID-19 at work and infected his wife because his employer, Victory Woodworks, Inc. (“Victory”), ignored the City and County of San Francisco’s health orders and moved workers who may have been exposed to the virus to Robert’s work site. The case was removed to federal district court, where that court granted Victory’s motion to dismiss. The Kuciembas appealed the dismissal, and the Ninth Circuit sought from the California Supreme Court answers to two key questions:
(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer?
(2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?
The Kuciemba Court concluded the answer to both questions is “no.”
Kuciemba Court Analysis
WCA Exclusivity Provisions
Under the WCA, workers’ compensation benefits generally provide the exclusive remedy for third-party claims if the asserted claims are “collateral to or derivative of” the employee’s workplace injury. Referred to as the “derivative injury” doctrine, as a general rule, a family member’s third party claim for an injury deriving from an employee’s workplace injury is barred under the WCA. An exception to this WCA exclusive remedy rule applies if a family member’s claim is for their own independent injury, not legally dependent on the employee’s injury. This exception applies even if both the non-employee and employee’s injuries are caused by the employer’s same conduct. However, the Court in Kuciemba clarified that a mere causal link between a third party’s personal injury and an employee’s injury is not sufficient to bring the third party’s claim within the scope of WCA’s derivative injury rule. Rather, a third party’s claim is only barred if proof of the employee’s injury is required as an element of a non-employee’s cause of action.
In applying this clarified derivative injury rule under the WCA, the Kuciemba Court held that Robert’s (the employee) infection may have been a “factual step” in causing Corby’s (his wife) illness, but it was not necessary for Corby to allege or prove Robert was injured in order to maintain her own negligence claim. She was only required to show that her husband was exposed to COVID-19 as a result of his employer’s negligence, and transmitted the virus to her. Since Corby’s negligence cause of action was not legally dependent on any workplace injury sustained by her husband, her claim was not barred under the derivative injury doctrine of the WCA.
But the Court’s analysis of this first question under the WCA did not resolve the question of whether the wife’s negligence claim against Victory was viable under California law. The Court needed to address the question as to whether Victory owed a duty to its employees’ household members to prevent the spread of COVID-19. For reasons of public policy, the Court in Kuciemba concluded no such duty existed.
An Employer’s Duty of Care Under California Civil Code Section 1714
Under California Civil Code section 1714, “[e]veryone is responsible, not only for the 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.” Thus, Civil Code section 1714 creates a “default” rule in California that everyone, and every employer, has a duty to exercise reasonable care for the safety of others. The Kuciemba Court concluded this Civil Code section 1714 default rule of a duty of care applied “in the COVID-19 context … where plaintiffs have alleged that the defendant, through its own actions, created an unreasonable risk of the disease’s transmission.” The question then became whether an exception to the default general duty rule should apply to exclude imposing on an employer a duty of care to prevent the spread of COVID-19 to employees and their household members.
Exceptions to California Civil Code Section 1714’s General Duty of Care
While Civil Code section 1714 articulates the default general duty of care rule in California, the Kuciemba Court recognized that Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”) identified several considerations that may, on balance, justify a departure from Civil Code section 1714’s default rule of duty. Those considerations are: (1) foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant’s conduct and injury suffered; (4) moral blame of defendant’s conduct; (5) policy of preventing future harm; (6) extent of burden to defendant and consequences to community for imposing this duty of care; and (7) the availability, cost, and prevalence of insurance for the risk involved.
The Kuciemba Court noted that the Rowland factors fall into two categories. “The first group involves foreseeability and the related concepts of certainty and the connection between plaintiff and defendant. The second embraces the public policy concerns of moral blame, preventing future harm, burden, and insurance availability. The policy analysis evaluates whether certain kinds of plaintiffs or injuries should be excluded from relief.”
The Kuciemba Court found that to varying degrees, all of the foreseeability factors (1) foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant’s conduct and injury suffered; and (4) moral blame policy consideration factor “largely tilt in favor of finding a duty of care.” However, the Court concluded that these factors were outweighed by “policy factors of preventing future harm and the anticipated burdens on defendants and the community weigh against imposing such a duty.” The Court observed:
Here, the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large counsels in favor of an exception to the general rule of Civil Code section 1714. Imposing 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. Although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, 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. These are the type of “policy considerations [that] dictate a cause of action should not be sanctioned no matter how foreseeable the risk.
Concluding that this is a case where “the consequences of a negligent act must be limited in order to avoid an intolerable burden on society,” the Kuciemba Court concluded employers do not owe a duty a care under California law to prevent the spread of COVID-19 to employees’ household members:
[T]here is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employers or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report disease exposure.
The Kuciemba Court recognized that imposing a duty on employers to prevent the spread of COVID-19 to employees’ household members would have dire financial consequences for employers and result in an explosion of litigation, thus opening the floodgates and placing significant burdens on the judicial system and community at large. Consequently, the Court found that an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
The Kuciemba Court decision provides a welcome degree of clarity with regard to COVID-19 and the scope of the derivative injury doctrine under the WCA. It likewise established that as of now, the California Supreme Court has definitively concluded that an employer owes no duty to prevent the spread of COVID-19 to employees’ household members. Employers should nonetheless continue to be diligent in protecting their workforce against the spread of COVID-19. Cal/OSHA COVID-19 non-emergency regulations are in effect and can give rise to violations. Please see our summary of the of Cal/OSHA COVID-19 non-emergency regulations in our new employment laws 2023 article here.
Moreover, the Kuciemba Court expressly noted that “social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic, and these changes are likely to continue. We acknowledge that the calculus might well be different in the future.” The Court likewise explicitly did not express an opinion as to whether a local measure enacted on an emergency basis could appropriately impose a tort duty extending to employees’ household members. The Court similarly stated it could not at this time assess how the Rowland factor of availability of insurance would impact the analysis.
Employers wanting to know more about the practical implications of the Kuciemba decision should contact the RJO attorney with whom they regularly work, or the authors of this article.