A woman can’t sue her husband’s employer for her severe Covid infection, the California Supreme Court has ruled, saying to allow this kind of lawsuit would all but open the floodgates for vexatious lawsuits against businesses of all kinds, while potentially jeopardizing the ability of society to continue to function in the face of a pandemic caused by a highly contagious virus.
On July 6, California’s highest state court delivered the unanimous ruling in the lawsuit brought by plaintiff Corby Kuciemba against her husband’s employer, Nevada-based cabinet maker and installer Victory Woodworks.
In the decision, the justices said they generally would agree that employers have a duty to attempt to prevent the spread of contagious and potentially deadly diseases within their workforce and in their workplaces.
Carol A. Corrigan
| courts.ca.gov
Further, the justices said employers cannot use the state’s workers’ compensation law to shield themselves from lawsuits brought by spouses or other immediate family members related to their employees, who may, in turn, contract a significant illness from their spouses, who may have initially become infected on the job, allegedly because of actions taken by the employer to increase the likelihood of spreading a virus or other contagion.
However, the high court said, employers still owe no duty to protect their employees’ spouses from contracting Covid, or any other contagious disease, because to do so would place “an intolerable burden on employers and society.”
“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,” Corrigan wrote in the court’s opinion.
“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.”
The case first landed in California superior court in 2020.
Corby and Robert Kuciemba sued Victory at that time, claiming the company should be made to pay for causing Corby to become severely infected with Covid.
According to the lawsuit, Kuciemba was hired by Victory to work on a construction site in San Francisco in May 2020. While San Francisco was under state and local public health orders to shut down non-essential activities at the time, construction work, such as that performed by Kuciemba for Victory, was considered essential and so could legally continue.
According to court documents, Victory’s construction site was also supposed to be working under guidelines purported by public health authorities to reduce the risk of spreading Covid, including requiring workers who may be infected or who may have been exposed to Covid to quarantine and remain away from job sites.
According to court documents, however, the Kuciembas were exposed to Covid when Victory allegedly transferred a group of workers to the San Francisco job site from elsewhere, even though those workers were believed to have been exposed to Covid recently.
Robert Kuciemba became infected, and then purportedly spread the illness to Corby, who suffered a severe bout with the illness, ultimately requiring her to be placed on a respirator.
In the lawsuit, the Kuciembas assert Victory owed a duty to both Robert, as their employee, and to his wife, to attempt to prevent them from becoming infected with the virus. They claim Victory ignored that duty.
The case was transferred to San Francisco federal court, where a judge sided with Victory and dismissed the lawsuit. The Kuciembas then appealed to the U.S. Ninth Circuit Court of Appeals.
The federal appeals court, however, punted on the case, instead asking the California state Supreme Court to clarify two key questions under California state law: Whether the state’s workers’ compensation law prevented the kind of lawsuit filed by the Kuciembas; and whether Victory, as an employer, held a duty under California law to Corby, as the wife of one of their employees, to prevent her from contracting Covid?
The state high court said the answer to both questions is no.
In the decision, the state high court found the workers’ compensation law doesn’t prevent the kind of lawsuit brought by Corby against her husband’s employer, because she is not an employee, and so her injuries cannot be covered through workers’ comp.
However, the court said that still doesn’t mean the Kuciembas or others like them should be allowed to sue employers for contagious illnesses contracted by the non-employed spouse or other immediate family member, even if the disease was contracted by the employed spouse at work.
Plaintiffs argued the spread of Covid-19 from Robert to Corby Kuciemba should be treated the same as if Corby had contracted mesothelioma from exposure to asbestos fibers brought home on her husband’s work clothes.
They noted other courts had allowed such lawsuits against other employers.
But the justices said the spread of a contagious illness like Covid is fundamentally different.
In the case of secondhand asbestos exposure, the justices noted mesothelioma is a “very rare cancer” which is generally limited to those exposed to a relatively small group of hazardous work environments.
By contrast, they said, extending such a duty of care to employers, like Victory, to prevent secondary Covid infections among their employees’ families “would extend to all workplaces, making every employer in California a potential defendant.”
“Even limiting a duty of care to employees’ household members, the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians,” Corrigan wrote.
Quoting from a decision from a Wisconsin federal judge in a lawsuit brought against ConAgra Foods over Covid exposure, the justices added: “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.”
Further, the justices said, allowing such lawsuits would almost certainly lead a large number of businesses, including those crucial to the continued functioning of society, to choose to shut down amid a pandemic, rather than risk the threat of crushing lawsuits from employees and their family members over exposure to illness.
And, the justices said, allowing such lawsuits would create a “daunting” torrent of litigation which could swamp courthouses throughout the state.
The justices pointed to a brief filed in support of Victory by the Construction Employers Association:
“As amicus curiae CEA aptly put it, ‘If there was ever a ‘floodgates’ situation, this is it.’”
The Kuciembas were represented by attorneys Mark L. Venardi, Martin Zurada and Mark Freeman, of the firm of Venardi Zurada, of Walnut Creek.
Victory was represented by attorney William Bogdan, of the firm of Hinshaw & Culbertson, of San Francisco.