Stanford Law School - Robert Crown Law Library

IN THE SUPREME COURT OF
CALIFORNIA
CORBY KUCIEMBA et al.,
Plaintiffs and Appellants,
v.
VICTORY WOODWORKS, INC.,
Defendant and Respondent.
S274191
Ninth Circuit
21-15963
Northern District of California
3:20-cv-09355-MMC
July 6, 2023
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Liu, Kruger, Groban,
Jenkins, and Evans concurred.

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KUCIEMBA v. VICTORY WOODWORKS, INC.
S274191
Opinion of the Court by Corrigan, J.
Here we answer two questions of California law certified
from the United States Court of Appeals for the Ninth Circuit
concerning the scope of an employer’s liability when an
employee’s spouse is injured by transmission of the virus1 that
causes the disease known as COVID-19. The questions are:
(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?2
The answer to the first question is no. Exclusivity
provisions of the WCA do not bar a nonemployee’s recovery for
injuries that are not legally dependent upon an injury suffered
by the employee. The answer to the second question, however,
is also no. Although it is foreseeable that an employer’s
1
The virus in question is formally designated as SARS-
CoV-2.
2
When the district court rendered its decision in the
underlying case, the first question was one of first impression.
Subsequently, the Second District Court of Appeal squarely
addressed the question in See’s Candies, Inc. v. Superior Court
(2021) 73 Cal.App.5th 66, review denied Apr, 13, 2022, S272923
(See’s Candies). The Court of Appeal did not have occasion to
answer the second question.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
negligence in permitting workplace spread of COVID-19 will
cause members of employees’ households to contract the disease,
recognizing a duty of care to nonemployees in this context would
impose an intolerable burden on employers and society in
contravention of public policy. These and other policy
considerations lead us to conclude that employers do not owe a
tort-based duty to nonemployees to prevent the spread of
COVID-19.
I. BACKGROUND
Because this matter is presently on appeal from a
dismissal under Federal Rules of Civil Procedure, rule 12(b)(6
(28 U.S.C.), we recite the facts as alleged in the operative
complaint. (See Papasan v. Allain (1986) 478 U.S. 265, 286.
The question at this stage of the litigation is the legal sufficiency
of the pleadings. We treat the factual allegations as true for
purposes of addressing the certified questions. (See Bell
Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555–556.
COVID-19 is a highly contagious and potentially fatal
respiratory illness spread through airborne droplets, like those
produced from coughs or sneezes. The complaint alleges the
disease can also be spread by contact with virus particles left on
the surface of objects. The disease was recognized in early 2020
and spread rapidly across the globe. In March 2020, the World
Health Organization declared COVID-19 a pandemic, and Bay
Area counties issued shelter-in-place orders prohibiting
nonessential travel. Eventually, these orders were relaxed and
replaced with orders tailored to specific industries. As relevant
here, the City and County of San Francisco’s health officer
issued an order on April 29, 2020 prescribing health and safety
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
guidelines to prevent the spread of COVID-19 at construction
jobsites.
On May 6, 2020, Robert Kuciemba began working for
defendant Victory Woodworks, Inc. (Victory) at a construction
site in San Francisco. About two months later, without taking
precautions required by the county’s health order, Victory
transferred a group of workers to the San Francisco site from
another location where they may have been exposed to the virus.
After being required to work in close contact with these new
workers, Robert became infected.3 He carried the virus home
and transmitted it to his wife, Corby, either directly or through
her contact with his clothing and personal effects. Corby was
hospitalized for several weeks and, at one point, was kept alive
on a respirator.4
On October 23, 2020, the Kuciembas sued Victory in
superior court. Corby asserted claims for negligence, negligence
per se, premises liability, and public nuisance. Robert asserted
a claim for loss of consortium. Victory removed the case to
federal court and moved to dismiss. The district court granted
the motion with leave to amend. Plaintiffs filed an amended
complaint reasserting the same causes of action except the
public nuisance claim. The district court granted a renewed
motion to dismiss, this time without leave to amend, concluding:
(1) claims that Corby contracted COVID-19 through direct
3
Because they share a last name, we refer to plaintiffs by
their first names to avoid confusion.
4
According to the original complaint, Robert was also
hospitalized for his COVID-19 infection. Robert filed a workers’
compensation claim for this injury, however, and does not allege
a direct negligence claim.
3

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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
contact with Robert were barred by the WCA’s exclusive remedy
provisions; (2) claims that Corby contracted COVID-19 through
indirect contact with infected surfaces were subject to dismissal
for failure to plead a plausible claim; and (3) to the extent the
claims were not barred by statute or insufficiently pleaded, they
failed because Victory’s duty to provide a safe workplace did not
extend to nonemployees, like Corby, who contract a virus away
from the jobsite.
Plaintiffs appealed, and on June 22, 2022, we agreed to
answer the certified questions.
II. DISCUSSION
A.
Workers’ Compensation Exclusivity
The California’s workers’ compensation system is a
comprehensive statutory scheme through which employees may
receive prompt compensation for costs related to injuries
incurred in the course and scope of their employment. (Lab.
Code, § 3200 et seq.; see Charles J. Vacanti, M.D., Inc. v. State
Comp. Ins. Fund (2001) 24 Cal.4th 800, 810 (Vacanti).) The
system is premised on a theoretical exchange we have called the
“ ‘compensation bargain.’ ” (Shoemaker v. Myers (1990) 52
Cal.3d 1, 16.) Under this bargain, “the employer assumes
liability for industrial personal injury or death without regard
to fault in exchange for limitations on the amount of that
liability. The employee is afforded relatively swift and certain
payment of benefits to cure or relieve the effects of industrial
injury without having to prove fault but, in exchange, gives up
the wider range of damages potentially available in tort.” (Ibid.
To effectuate this exchange, the WCA limits an employee’s
remedies for covered injuries. When the statutory conditions for
recovery are met, an employer’s liability to pay compensation
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
under the WCA is “in lieu of any other liability whatsoever to
any person.” (Lab. Code, § 3600, subd. (a).) Similarly, with
limited exceptions not relevant here, “the right to recover
compensation is . . . the sole and exclusive remedy of the
employee or his or her dependents against the employer.” (Lab.
Code, § 3602, subd. (a).) A basic prerequisite to the payment of
compensation, and triggering of these exclusivity provisions, “is
that the compensation sought is for an injury to an employee.
In some circumstances, however, the bar on civil actions based
on injuries to employees extends beyond actions brought by the
employees themselves.” (Snyder v. Michael’s Stores, Inc. (1997
16 Cal.4th 991, 996 (Snyder).) As noted, the relevant statutes
provide that an employer’s compensation obligation is “in lieu of
any other liability whatsoever to any person” (Lab. Code, § 3600,
subd. (a), italics added), and such compensation is “the sole and
exclusive remedy of the employee or his or her dependents
against the employer” (Lab. Code, § 3602, subd. (a), italics
added). “This statutory language conveys the legislative intent
that ‘the work-connected injury engender[] a single remedy
against the employer, exclusively cognizable by the
compensation agency.’ ” (Snyder, at p. 997.
Because the workers’ compensation system has its
theoretical basis in the compensation bargain between employer
and employee, a nuanced analysis is required when third parties
seek to sue the employer after an employee’s work-related
injury. In general, workers’ compensation benefits provide the
exclusive remedy for third party claims if the asserted claims
are “collateral to or derivative of” the employee’s workplace
injury. (Snyder, supra, 16 Cal.4th at p. 997; see King v.
CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051 (King); Vacanti,
supra, 24 Cal.4th at p. 811.) This aspect of workers’
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
compensation law is sometimes called the derivative injury
doctrine. (See, e.g., Snyder, at p. 1000.) Examples of third party
claims deemed “collateral” or “derivative” include heirs’ claims
for an employee’s wrongful death (Horwich v. Superior Court
(1999) 21 Cal.4th 272, 286), a spouse’s claim for loss of
consortium (LeFiell Manufacturing Co. v. Superior Court (2012
55 Cal.4th 275, 284–285 (LeFiell)), and a spouse’s claim for
negligent infliction of emotional distress caused by witnessing
an employee’s injuries (Williams v. Schwartz (1976) 61
Cal.App.3d 628, 634). In general, a family member’s claim for
an injury derived from an employee’s workplace injury is barred
by workers’ compensation exclusivity. However, a family
member’s claim for her own independent injury, not legally
dependent on the employee’s injury, is not barred, even if both
injuries were caused by the same negligent conduct of the
employer. (Snyder, at p. 998.
Determining the scope of workers’ compensation
exclusivity can be analytically challenging. (See Vacanti, supra,
24 Cal.4th at p. 811.) After all, a spouse’s complaint for loss of
consortium or negligent infliction of emotional distress seeks
damages for injuries that the nonemployee plaintiff personally
suffers. Yet, the spouse’s claims would not arise but for the fact
that the employee was injured. It is the fact of the employee’s
workplace injury that results in the spouse’s loss of consortium
or emotional distress. If the employee had not been injured, the
spouse’s injury would not have occurred. However, we have held
that something more than factual, or “but for,” causation is
necessary to give rise to the exclusivity bar imposed by the
derivative injury doctrine. A plaintiff’s claim is barred as
derivative only if the plaintiff is required to prove injury to the
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
employee as at least part of a legal element of the plaintiff’s own
cause of action.
For example, a common law loss of consortium claim
requires proof of “four elements: ‘(1) a valid and lawful marriage
between the plaintiff and the person injured at the time of the
injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶]
(3) loss of consortium suffered by the plaintiff; and [¶] (4) the
loss was proximately caused by the defendant’s act.’ ” (LeFiell,
supra, 55 Cal.4th at pp. 284–285.) Because the plaintiff is
required to prove that her spouse suffered tortious injury, the
claim is “ ‘by its nature, dependent on the existence of a cause of
action for tortious injury to a spouse.’ ” (Id. at p. 285.) A wife
may suffer her own loss of consortium injury, but that claim
legally derives from the tortious injury to her husband.
Similarly, a bystander’s recovery for negligent infliction of
emotional distress is permitted only if the “plaintiff: (1) is
closely related to the injury victim; (2) is present at the scene of
the injury-producing event at the time it occurs and is then
aware that it is causing injury to the victim; and (3) as a result
suffers serious emotional distress.” (Thing v. La Chusa (1989
48 Cal.3d 644, 667–668, fns. omitted.) As with loss of
consortium, to be legally sufficient the emotional distress claim
requires the occurrence of a separate injury to the plaintiff’s
close relation.
We explored this requirement of legal dependence in
Snyder, supra, 16 Cal.4th 991. There, the plaintiff alleged she
was injured in utero when her mother inhaled toxic fumes in the
workplace. (Id. at p. 994.) The mother was hospitalized with
symptoms from the exposure, and the plaintiff suffered
permanent neurological damage. The trial court had sustained
a demurrer to the child’s negligence action based on Bell v.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
Macy’s California (1989) 212 Cal.App.3d 1442 (Bell), which held
that fetal injuries are derivative of injuries to the pregnant
mother as a matter of law. (Snyder, at p. 994.) Snyder rejected
this approach and concluded the child’s claim was not barred as
derivative because the plaintiff’s action sought compensation for
her own injuries, not her mother’s. (Id. at p. 995.) The mother’s
inhalation of fumes was a “but for” fact in the causal chain of
injury, but it was not legally required to be proven as an element
of the daughter’s own cause of action.
Snyder’s analysis began with a close examination of the
Bell case, which it then disapproved. The pregnant employee in
Bell had complained of severe abdominal pain, which turned out
to be caused by a ruptured uterus. An on-site nurse employed
by Macy’s misdiagnosed the condition and delayed calling for an
ambulance. The complaint alleged that the delay caused fetal
brain damage. (Bell, supra, 212 Cal.App.3d at pp. 1446–1447.
The trial court granted summary judgment to Macy’s on the
ground that the child’s claims were barred by the derivative
injury doctrine. The Bell court affirmed, concluding workers’
compensation exclusivity barred the child’s tort claims against
the employer because a fetus in utero is inseparable from its
mother. Therefore, the prenatal injuries were “a collateral
consequence” and a “direct result” of the employer’s negligence
toward the mother. (Id. at p. 1453.) Bell reasoned that injury
to a fetus “can only occur as the result of some condition
affecting its mother,” and if that condition arises in the course
of employment the derivative injury doctrine applies. (Id. at
p. 1453, fn. 6.
Snyder rejected Bell’s focus on the relationship of fetal
injuries to a maternal “condition” as overbroad: “Neither the
statutes nor the decisions enunciating the [derivative injury]
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
rule suggest workers’ compensation exclusivity extends to all
third party claims deriving from some ‘condition affecting’ the
employee. Nor is a nonemployee’s injury collateral to or
derivative of an employee injury merely because they both
resulted from the same negligent conduct by the employer. The
employer’s civil immunity is not for all liability resulting from
negligence toward employees, but only for all liability, to any
person, deriving from an employee’s work-related injuries.
([Lab. Code,] § 3600.)” (Snyder, supra, 16 Cal.4th at p. 998.) In
Bell, the suit rested on the direct injury to the child caused by
the employer’s delay in summoning aid. It neither alleged, nor
was required to allege as an element of proof, any workplace
injury to the mother herself.
Our opinion in Snyder then mentioned two aspects of the
analysis for determining whether a third party’s injury is
derivative. First, we quoted Bell’s dissenting justice, who opined
that the derivative injury rule applies when the third party
claim is “ ‘derivative . . . in the purest sense’ ” in that “ ‘[i]t
simply would not have existed in the absence of injury to the
employee.’ (Bell, supra, 212 Cal.App.3d at p. 1456 (conc. and
dis. opn. of White, P. J.).)” (Snyder, supra, 16 Cal.4th at p. 998.
Second, we related an advocate’s view that the derivative injury
rule “applies when the plaintiff, in order to state a cause of
action, must allege injury to another person — the employee.”
(Ibid.) From this discussion, Victory and its supporting amici
curiae derive a rule for derivative injuries that is based on
factual causation. They assert that if a third party’s injury
would not have occurred but for an injury to the employee, it is
derivative of the employee’s injury for workers’ compensation
purposes. Here, because Corby would not have become ill with
COVID-19 but for her husband Robert’s infection at work, they
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
argue Corby’s injury is derivative of Robert’s and her claims are
therefore barred by workers’ compensation exclusivity.
The argument misinterprets Snyder. We explained there
that the derivative injury rule governs when “ ‘the third party
cause of action [is] derivative of the employee injury.’ ” (Snyder,
supra, 16 Cal.4th at p. 998, italics added.) Snyder thus tethered
the derivative injury analysis to the plaintiff’s cause of action,
not to a factual relationship between injuries to the plaintiff and
the employee. That focus is confirmed by Snyder’s next
sentence, which explains that the derivative injury rule comes
into play when the plaintiff must allege injury to an employee
“in order to state a cause of action.” (Ibid., italics added.) Snyder
did not hold that the exclusivity bar arises any time an employee
injury is a “but for” cause of injury to a third party. Read
carefully, the case holds that exclusivity provisions bar a third
party claim only when proof of an employee’s injury is required
as an element of the cause of action.
Snyder took pains to note that a third party’s claim must
be legally dependent on an employee’s injury for the derivative
injury rule to apply. For example, we observed that the Bell
court erred in examining whether the fetal injuries resulted
from negligent treatment of the mother or a “condition” affecting
the mother. (Snyder, supra, 16 Cal.4th at p. 999.) Instead, we
explained, the court should have asked “whether [the child’s]
claim was legally dependent on [the mother’s] work-related
injuries.” (Ibid., first italics added.) We faulted Bell’s assertion
that fetus and mother were “ ‘inseparable,’ ” noting that fetal
and maternal injuries are not necessarily related. (Id. at
p. 1000.) Then, of critical importance here, we held that “[e]ven
when the mother is injured, . . . the derivative injury rule does
not apply unless the child’s claim can be considered merely
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
collateral to the mother’s work-related injury, a conclusion that
rests on the legal or logical basis of the claim rather than on the
biological cause of the fetal injury.” (Ibid., second italics added.
Accordingly, Victory’s sole focus on viral transmission as a
factual “but for” cause is misplaced. For the derivative injury
rule to apply, Robert’s infection must not only be the factual
cause of Corby’s illness; Corby’s claim must also be “legally
dependent on injuries suffered by” Robert. (Snyder, supra, 16
Cal.4th at p. 1000, italics added.) Robert’s infection may have
been a necessary factual step in the causal chain that led to
Corby’s illness. But it is not necessary for Corby to allege or
prove injury to Robert to support her own negligence claim. The
difference becomes clear when her claim is compared to a
derivative claim like loss of consortium. If Corby had sought
recovery for loss of consortium, she would have been required to
prove that an injury to her spouse, Robert, in turn injured her
by affecting their marital relationship. (See LeFiell, supra, 55
Cal.4th at p. 285.) To support her negligence claim here against
Victory, however, she need only show that Robert was exposed
to the virus at the workplace and carried it home to her. As
plaintiffs point out, it does not matter for purposes of Corby’s
claim whether Robert himself developed COVID-19 or suffered
any cognizable injury from his exposure to the virus. Corby’s
negligence claim is not legally dependent on any actual injury to
Robert.
The recent decision in See’s Candies, supra, 73
Cal.App.5th 66 properly applied Snyder in addressing
essentially the same facts presented here. The See’s Candies
complaint alleged that a wife had contracted COVID-19 at work
due to the company’s poor safety practices. She infected her
husband, who died from the illness. (Id. at p. 72.) The trial
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
court rejected the company’s argument that the wife’s wrongful
death claims were barred by workers’ compensation exclusivity
because the husband’s death would not have occurred but for
her own workplace injury. (Id. at pp. 72–73.) Ruling on the
company’s petition for writ relief, the Court of Appeal affirmed,
concluding the company’s sole reliance on biological causation
was inconsistent with our discussion in Snyder. The court
observed that Snyder repeatedly described “collateral or
derivative claims as those that are ‘legally’ or ‘logically’
dependent on an employee’s injuries.” (Id. at p. 85, quoting
Snyder, supra, 16 Cal.4th at pp. 999, 1000, 1005.) After
discussing some unifying features of derivative claims, the court
correctly concluded the derivative injury rule applies when it is
“legally impossible to state a cause of action . . . without alleging
a disabling or lethal injury to another person.” (See’s Candies,
at p. 86.) Moreover, the court noted, “a construction of the
derivative injury rule premised solely on causation would bar
civil claims by any person injured as a result of the employee’s
injury,” not just claims from family members. (Id. at p. 89.
The See’s Candies decision made a further observation
about derivative injury claims that is relevant here: These
claims generally seek recovery for economic or intangible losses
sustained as a result of a loved one’s disability or death, rather
than for the plaintiff’s own physical injuries or death. (See’s
Candies, supra, 73 Cal.App.5th at p. 88; see Snyder, supra, 16
Cal.4th at pp. 1001–1002.) Unless a plaintiff’s physical injury
or death claim were somehow legally dependent upon an
employee’s workplace injury, it would not be barred as
derivative. (See Snyder, at p. 1000.) Indeed, it appears only one
appellate decision has applied the derivative injury rule to a
third party’s separate physical injuries.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
Salin v. Pacific Gas & Electric Co. (1982) 136 Cal.App.3d
185 (Salin) involved unusual facts. Salin’s highly stressful job
allegedly caused him to become increasingly mentally deranged.
(Id. at pp. 187–188.) One day, as a result of the extreme
pressure exerted by his employer, Salin attempted to kill
himself but instead shot and killed his two young daughters.
(Id. at p. 189.) He then sued his employer for his daughters’
wrongful deaths. (Ibid.) The Court of Appeal was skeptical of
this claim. It correctly concluded workers’ compensation
provided the sole remedy for Salin’s own injuries because, as the
complaint alleged, the psychotic episode was proximately caused
by his own employment. (Id. at pp. 190–191; see Lab. Code,
§§ 3600, subd. (a), 3602, subd. (a).) However, the court went
astray when it held workers’ compensation exclusivity also
barred a claim for the daughters’ wrongful death. Accepting
that Salin stood in the shoes of his nonemployee daughters in
asserting the claim, the court reasoned that any claim by the
daughters against the employer would have been barred
because the daughters’ injuries, like Salin’s own, were factually
caused by an employment-related mental condition. (Salin, at
pp. 191–193.
Salin’s analysis on this point was thin. Quoted in full, it
reads: “We have considered plaintiff’s argument, as we
understand it, that in respect of his daughters’ wrongful death,
he stands in the position of a nonemployee third party who has
suffered injury and damages as a result of the tortious act of an
employer. [¶] The point is answered by Labor Code section 3600
stating that: ‘Liability for compensation [by an employer to a
worker is] in lieu of any other liability whatsoever to any
person. . . .” (Italics added.) [¶] Moreover, we observe judicial
holdings that where, following a work-related injury or death,
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
conditions of compensation exist, third parties who have
suffered prejudice or damages by virtue of such injury or death[]
are barred from recovery in actions at law against the employer.
[¶] California, as do most, if not all of the states of the union,
follows the ‘ “broader view of the exclusion of liability on the part
of the employer to any person whatsoever by reason of the injury
accruing to the employee whether such person be a dependent
or nondependent.” ’ [Citations.] Recognizing this rule, plaintiff
concedes, as he must, that: ‘A series of cases apply the exclusive
remedy rule where the alleged injury stems directly from the
employee’s injury.’ ” (Salin, supra, 136 Cal.App.3d at pp. 191–
192.) Citing loss of consortium, emotional distress and wrongful
death claims, Salin concluded: “It follows that had plaintiff’s
daughters survived the injuries he had inflicted upon them, or
had otherwise been damaged due to his employment-related
mental condition, they would have had no cause of action against
[the employer].” (Id. at p. 192.
As is apparent from the foregoing, the Salin court relied
solely on the statutory provision limiting employers’ liability for
injuries “sustained by . . . employees” (Lab. Code, § 3600,
subd. (a), italics added) and on derivative injury cases involving
intangible or economic losses. At no point did the court explain
what authorities or rationale supported extending the
derivative injury rule to encompass independent third party
claims for personal injury or death resulting from the employer’s
negligent conduct. It simply assumed that a “but for” link to the
employee’s injury was sufficient to make a third party’s claim
derivative.
Our opinion in Snyder cast some doubt on this analysis. If
this court had agreed that “but for” causation alone is sufficient
to render a third party’s personal injury claim derivative,
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
Snyder would have discussed Salin with approval. But it did
not. Instead, after explaining that claims for wrongful death,
loss of consortium, and negligent infliction of emotional distress
are derivative because the alleged injuries are “legally as well
as causally” dependent on an employee’s injury (Snyder, supra,
16 Cal.4th at p. 999), Snyder mentioned Salin in a footnote,
observing that “[o]ne Court of Appeal has gone farther” (id. at
p. 999, fn. 2). Without deciding the correctness of Salin’s
holding, we observed that Labor Code “sections 3600 through
3602 do not directly support the Salin court’s extension of the
derivative injury rule to third party injuries allegedly caused by
an injured employee’s postinjury acts.” (Ibid.) We now clarify
that, without more, 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 the derivative
injury rule.5 Salin v. Pacific Gas & Electric Co., supra, 136
5
Our holdings in Vacanti, supra, 24 Cal.4th 800 and King,
supra, 5 Cal.5th 1039 are consistent with this analysis. In
Vacanti, lien holders sought to recover compensation for medical
services they provided to employees for workplace injuries
(Vacanti, at p. 815), and, in King, an employee sought to recover
for separate injuries that arose from the treatment of his
workplace injury (King, at pp. 1052–1053). Although the
opinions stated that “injuries arising out of and in the course of
the workers’ compensation claims process fall within the scope
of the exclusive remedy provisions because this process is
tethered to a compensable injury” (Vacanti, at p. 815; see King,
at p. 1052), their holdings were not based on factual causation.
Instead, they rely on the principle that the WCA provides only
a single remedy for an employee’s workplace injury. (See Lab.
Code, § 3600; Snyder, supra, 16 Cal.4th at p. 996.) Because both
cases involved attempts to recover additional amounts for an
employee’s compensable workplace injury, the claims in those
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
Cal.App.3d 185 is disapproved to the extent it conflicts with the
views expressed herein.
Victory posits a number of grounds for distinguishing or
limiting Snyder. Although we agree there are some significant
factual differences between that case and this one, Snyder’s
guidance on the derivative injury rule remains compelling.
As Victory points out, the unborn child in Snyder “did not
‘catch’ birth defects from the employee.” Although the fetus was
exposed to toxic fumes only because her mother inhaled them,
she alleged she was injured by the fumes themselves and not as
a result of an injury her mother suffered. (Snyder, supra, 16
Cal.4th at p. 1000.) According to Victory, this means the fetal
injuries were entirely separate and independent from those of
her employee-mother, just as if the fetus had instead been a
child visiting the workplace in a stroller at the time of the carbon
monoxide release. Victory contrasts these independent injuries
with the situation here, in which Corby contracted COVID-19
only after breathing viral particles expelled by Robert or left on
surfaces after he became a carrier of the disease.
It is not clear that the factual predicate for this distinction
is accurate. One might also say that Corby was exposed to the
virus through Robert, just as the fetus in Snyder was exposed to
a toxin through her mother. In other words, the passage of a
harmful substance through an intermediary does not
necessarily render the resulting injury derivative of or collateral
to an injury sustained by the intermediary. In any event,
Snyder took pains to clarify that a causal “but for” link between
cases were barred by the WCA’s exclusivity provisions. (See
King, at pp. 1052–1053; Vacanti, at pp. 815–816.
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Opinion of the Court by Corrigan, J.
the injuries is not what matters for purposes of the derivative
injury rule. The pertinent question is not whether an
employee’s work-related injury was a “but for” link leading to
the third party injury. Instead, the pertinent question is
whether the plaintiff’s claim is logically or “legally dependent”
on that employee injury. (Snyder, supra, 16 Cal.4th at p. 999,
see id. at pp. 1000, 1005.) Because Corby’s negligence claim
does not require that she allege or prove that Robert suffered
any injury, it is not barred by the derivative injury rule.6
Victory’s additional attempts to cabin Snyder fare no
better. First, Victory asserts Snyder intended to create nothing
more than “an in utero rule” because all of the out-of-state cases
the opinion discussed concerned fetal injuries. These
authorities were most relevant to the facts in question, but that
does not mean the legal principles Snyder announced do not
apply in other contexts. We did not limit Snyder’s holding to in
utero injuries. On the contrary, we observed that our discussion
of Bell had “clarified the scope of the derivative injury doctrine.”
(Snyder, supra, 16 Cal.4th at p. 1000.) Second, Victory insists
that the “key” to Snyder’s holding “was not the manner of the
harm, but the situs of the harm — the fact that the fetus was
independently injured on the employer’s property.” This
6
An amicus curiae brief supporting Victory asserts that the
derivative injury rule should bar recovery whenever an
employee’s injury is part of the causal chain leading to the
nonemployee’s injury, because “[c]ausation is an essential
element of every negligence claim.” (Amicus Curiae Brf. of
United States Chamber of Commerce, et al., at p. 24.) The
argument sweeps too broadly and would expand the derivative
injury rule well beyond its currently recognized bounds. It also
repackages the same focus on biological causation we rejected in
Snyder.
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Opinion of the Court by Corrigan, J.
assertion misreads our opinion. Snyder’s holding was not
premised on the fact that the fetus was injured at the mother’s
workplace. The location where injury occurs is not a dispositive
consideration for determining whether the derivative injury rule
bars a nonemployee’s recovery. Snyder did not suggest
otherwise.
As we noted in Snyder, care must be taken when
considering extensions of the derivative injury rule because the
WCA’s “ ‘compensation bargain’ . . . is between businesses and
their employees and generally does not include third party
injuries.” (Snyder, supra, 16 Cal.4th at p. 1004.) Although it
makes sense to consider purely collateral or derivative losses as
part of the employee’s exchange, nothing in the language of the
WCA nor the case law construing it “remotely suggests that
third parties who, because of a business’s negligence, suffer
injuries — logically and legally independent of any employee’s
injuries — have conceded their common law rights of action as
part of the societal ‘compensation bargain.’ ” (Id. at p. 1005.
Instead, those losses are properly subject to compensation under
a conventional tort analysis. (Ibid.; see Civ. Code, § 1714,
subd. (a).
Finally, although the issue is still novel, we note that one
other court has also concluded derivative injury principles do
not bar “take-home” COVID-19 claims. In Estate of de Ruiz v.
ConAgra Foods Packaged Foods, LLC (E.D.Wis. 2022) 601
F.Supp.3d 368 (Ruiz I), a federal district court considered
whether exclusivity provisions of the Wisconsin’s Worker’s
Compensation Act barred recovery for the death of a spouse from
COVID-19 following her husband’s workplace infection with the
virus. Construing statutes similar to Labor Code sections 3600
and 3602 (see Ruiz I, at p. 375), the court concluded claims for
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
the wife’s death were not barred. It distinguished Wisconsin
case law finding loss of consortium claims to be derivative
injuries, noting that it made “sense to apply the exclusive-
remedy provision in that situation because the nonemployee-
spouse cannot legally state a cause of action without alleging a
disabling or lethal injury to her spouse.” (Id. at p. 376.) In the
case before it, however, the wife was not merely a bystander but
had “suffered an independent injury by contracting and dying of
COVID-19.” (Ibid.) The court stressed that claims for her death
were “not legally dependent on” the husband’s workplace injury,
and the mere existence of a causal link between the injuries,
through transmission of the virus, was not enough to trigger
exclusivity provisions. (Ibid.
The district court in Ruiz I, supra, 601 F.Supp.3d 368 also
relied on Woerth v. U. S. (6th Cir. 1983) 714 F.2d 648, a decision
under the Federal Employee’s Compensation Act. In that case,
a nurse contracted hepatitis while working at a veteran’s
administration hospital and passed the disease to her husband.
The court concluded the husband’s tort claims were not barred
by workers’ compensation exclusivity because he sought
recovery not for losses ancillary to his wife’s illness but for his
own entirely independent medical expenses and lost wages.
(Woerth, at pp. 649–650.) The court explained: “While [the
husband’s] hepatitis may derive from his wife as a matter of
proximate cause, his cause of action does not. His right to
recover for the negligence of the United States is based upon his
own personal injury, not a right of ‘husband and wife.’ ” (Id. at
p. 650.) Of course, Ruiz I and Woerth are not binding precedent
in California. Their logic, however, is persuasive.
Accordingly, we conclude exclusivity provisions of the
WCA do not bar Corby’s tort claims against Victory. Corby’s
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Opinion of the Court by Corrigan, J.
negligence claims are not legally or logically dependent on any
workplace injury sustained by Robert, and the “but for” causal
link between Corby’s injury and Robert’s exposure to COVID-19
is insufficient, on its own, to render the claims derivative. (See
Snyder, supra, 16 Cal.4th at pp. 999–1000.
B.
Duty of Care
The second certified question asks whether California law
imposes a duty of care on employers to prevent the spread of
COVID-19 to their employees’ household members. Before we
address this substantive question, the parties’ briefing requires
us to clarify once again the appropriate framework for analyzing
duty in this context.
1.
No Special Relationship Required
Victory argues plaintiffs’ assertion of duty here fails for
lack of a special relationship. It contends no duty of care was
owed because it was not in a special relationship with Corby,
and its employer-employee relationship with Robert cannot be
the basis of a duty to prevent harm away from the worksite or
to third parties. The assertion that a special relationship is
required misapprehends our case law and ignores the
allegations in the operative complaint.7
7
Amicus curiae See’s Candies, Inc. and See’s Candy Shops,
Inc. (See’s Candies) observes that courts in other states have
declined to impose a duty of care to prevent COVID-19
transmission based on employers’ lack of a special relationship
with nonemployees. (See Iniguez v. Aurora Packing Co., Inc.
(Ill.Cir.Ct. Mar. 31, 2021) 2021 WL 7185157 at p. *2 (Iniguez);
Estate of Madden v. Southwest Airlines, Co. (D.Md. Jun. 23,
2021, Civ. A. No. 1:21-CV-00672-SAG) 2021 WL 2580119 at p. 4,
fn. 1 (Madden).) The short answer to this argument is that the
law in other states is different, and there is no indication in
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Opinion of the Court by Corrigan, J.
Duty, under the common law, is essentially an expression
of policy that “ ‘the plaintiff’s interests are entitled to legal
protection against the defendant’s conduct.’ ” (Dillon v. Legg
(1968) 68 Cal.2d 728, 734; see Bily v. Arthur Young & Co. (1992
3 Cal.4th 370, 397 (Bily).) The requirement of a legal duty is
frequently invoked “ ‘to limit generally “the otherwise
potentially infinite liability which would follow from every
negligent act.” ’ ” (Bily, at p. 397; see Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1143 (Kesner).
The “general rule” of duty in California is established by
statute. (Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764,
771 (Cabral).) Civil Code section 1714, subdivision (a) states in
relevant part: “Everyone 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.” “This statute establishes the
these cases that either Illinois or Maryland has a statute
equivalent to Civil Code section 1714 imposing a duty of care on
all persons by default.
Similarly, Victory relies on Elsheref v. Applied Materials,
Inc. (2014) 223 Cal.App.4th 451 to argue the employer-employee
relationship “does not translate to a special relationship outside
the workplace.” In that case, a child born with birth defects sued
his father’s employer, claiming his injuries were caused by the
father’s exposure to workplace toxins. The court first concluded
duty should not be imposed based on an analysis of policy factors
(id. at pp. 460–461; see post, at pp. 29–46), then separately
rejected the child’s argument for duty based on lack of a special
relationship (Elsheref, at pp. 461–462). Because we hold that a
special relationship is not required given the nature of plaintiffs’
allegations here, Elsheref is inapposite.
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Opinion of the Court by Corrigan, J.
default rule that each person has a duty ‘to exercise, in his or
her activities, reasonable care for the safety of others.’ (Cabral,
at p. 768.)” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204,
214 (Brown).
As we recently explained, the rule of Civil Code
section 1714, though broad, “has limits.” (Brown, supra, 11
Cal.5th at p. 214.) It “imposes a general duty of care on a
defendant only when it is the defendant who has ‘ “created a
risk” ’ of harm to the plaintiff, including when ‘ “the defendant
is responsible for making the plaintiff’s position worse.” ’ ”
(Ibid., quoting Lugtu v. California Highway Patrol (2001) 26
Cal.4th 703, 716 (Lugtu).) “The law does not impose the same
duty on a defendant who did not contribute to the risk that the
plaintiff would suffer the harm alleged. Generally, the ‘person
who has not created a peril is not liable in tort merely for failure
to take affirmative action to assist or protect another’ from that
peril.” (Brown, at p. 214, quoting Williams v. State of California
(1983) 34 Cal.3d 18, 23; see Regents of University of California
v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents).
The situations we confronted in Brown and Regents fell
within this exception to Civil Code section 1714’s default rule of
duty. In both cases, the plaintiffs’ injuries were inflicted by a
third party, not the defendant. The Brown plaintiffs were
sexually abused by their athletic coach (Brown, supra, 11
Cal.5th at p. 210), and the Regents plaintiff was stabbed by a
fellow college student during class (Regents, supra, 4 Cal.5th at
p. 617). The claims we considered in those cases were not
against the individuals whose negligent or intentional conduct
caused the plaintiffs harm, but against organizations the
plaintiffs asserted were negligent in failing to protect them from
the harm. (See Brown, at p. 210; Regents, at p. 617.) These
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
defendants, a sport’s governing body and a university, did not
create or contribute to the risk of sexual abuse or stabbing. For
that reason, the default duty rule of Civil Code section 1714 did
not apply, and the starting point for our analysis was instead
the alternate rule that generally “ ‘one owes no duty to control
the conduct of another, nor to warn those endangered by such
conduct.’ (Davidson v. City of Westminster (1982) 32 Cal.3d 197,
203.)” (Regents, at p. 619; see Brown, at p. 214.) Under those
circumstances, we explained, the law does not impose a duty to
control, warn, or protect unless there is a special relationship
between the parties that “ ‘gives rise to a duty to act.’ ” (Regents,
at p. 619; see Brown, at p. 220.
The complaint here alleges that, in violation of a City and
County of San Francisco health order issued two months earlier,
Victory transferred a group of previously off-site workers when
there was reason to believe they had been exposed to the SARS-
CoV-2 virus. According to the complaint, Robert’s work placed
him in close contact with these newly arrived workers. As a
result, he was infected with the virus and passed it to his wife
Corby. The complaint does not allege that Victory was negligent
in failing to protect Corby from harm caused by the negligent or
intentional misconduct of a third party. Rather, it alleges Corby
was harmed by Victory’s own misconduct in transferring
potentially infected workers to Robert’s jobsite and forcing
Robert to work in close proximity to them.
It is true that Robert was the conduit for Corby’s infection,
and thus he was the immediate cause of her illness. But an
exclusive focus on causation in this context is inconsistent with
our case law. The proper question, we have explained, is instead
whether the defendant’s “ ‘entire conduct created a risk of
harm’ ” to the plaintiff. (Brown, supra, 11 Cal.5th at p. 215,
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Opinion of the Court by Corrigan, J.
fn. 6, quoting Rest.3d Torts, Liability for Physical and
Emotional Harm (2012) § 37, com. c, p. 3; see Brown, at p. 214.
“Although we have held that the existence of a relationship
between the plaintiff and the defendant is one basis for finding
liability premised on the conduct of a third party [citations], we
have never held that such a relationship is a prerequisite to
finding that a defendant had a duty to prevent injuries due to
its own conduct or possessory control.” (Kesner, supra, 1 Cal.5th
at p. 1163, italics added.) Likewise, Brown explained that “the
no-duty-to-protect rule will not relieve the defendant of an
otherwise applicable duty to exercise reasonable care when, by
its own conduct, the defendant has increased the risk of harm to
the plaintiff.” (Brown, at p. 215, fn. 7.) Here, plaintiffs have
alleged that Victory created a risk of harm by violating a county
health order designed to limit the spread of COVID-19. These
allegations raise a claim that Victory violated its obligation “to
exercise due care in [its] own actions so as not to create an
unreasonable risk of injury to others.” (Lugtu, supra, 26 Cal.4th
at p. 716; see Civ. Code, § 1714, subd. (a).) The fact that the
alleged violation resulted in injury beyond the workplace, when
the contagion was spread by an innocent third party, does not
change the analysis.
Kesner, supra, 1 Cal.5th 1132 is consistent with this
conclusion, because Civil Code section 1714 was the starting
point of our duty analysis under analogous facts. There,
plaintiffs contracted mesothelioma as a result of their family
members’ work with asbestos. They argued that defendant
companies owed them a duty of care, as employers or
landowners, to prevent “take-home” exposure to asbestos.
(Kesner, at p. 1140.) The mechanism of injury was different in
Kesner, because in that case the toxin itself was carried home on
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
the clothing or person of the workers, whereas here the virus
generally passes to household members by indirect means,
through a worker whose coughing or sneezing spreads airborne
viral particles.8 But in both cases the employee is a vector,
bringing home a harmful substance that causes the plaintiff’s
injury. We began our analysis in Kesner with the default rule of
Civil Code section 1714 and then considered whether policy
considerations justified limiting or recognizing an exception to
that duty. (See Kesner, at pp. 1142–1143.) Even though
causation of the plaintiffs’ injuries was indirect, as alleged here,
our opinion never suggested that a special relationship was a
required prerequisite for finding a duty of care.
Several additional arguments have been advanced for why
the default duty of Civil Code section 1714 should not apply, but
none is persuasive. Amicus curiae Construction Employers’
Association (CEA) argues an employer cannot “create” a risk of
COVID-19 because the virus is preexisting and does not derive
from an employer’s property or operations. Nor can an employer
make a “plaintiff’s position worse” (Lugtu, supra, 26 Cal.4th at
p. 716) with respect to COVID-19, CEA asserts, because the
virus is now ubiquitous. However, we have previously
considered Civil Code section 1714 to be the source of a duty to
prevent the negligent transmission of infectious disease. (See
John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188–1189
[HIV].) Moreover, CEA’s arguments once again ignore the
allegations of the complaint, which must be taken as true at this
8
We do not address plaintiffs’ theory of transmission from
surfaces because the plausibility of those allegations remains
the subject of dispute in the Ninth Circuit. We note, however,
that the precise method of viral transmission makes no
difference in our duty analysis.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
stage in the litigation. (See Papasan v. Allain, supra, 478 U.S.
at p. 286.) Victory need not have created the virus itself to owe
a duty of care. What is important is that Victory allegedly
created a risk of infection by transferring exposed workers to
Robert’s jobsite in violation of the county health order. By doing
so, it also made Corby’s situation worse by increasing the
chances she would become infected with the virus through
contact with her husband. Relatedly, CEA contends any
increased risk was not “unreasonable” (see Civ. Code § 1714,
subd. (a)) because the Governor’s “ ‘Stay-Home Order’ ”
permitted the continuation of essential work, including by
construction contractors such as Victory. (See Governor’s Exec.
Order No. N-33-20 (Mar. 19, 2020).) To the extent this
argument concerns duty as opposed to breach, plaintiffs do not
assert Victory increased the risk of harm merely by continuing
its business operations; they allege Victory engaged in
affirmative misconduct by violating a county health order.
These allegations are sufficient to support an assertion of duty
under Civil Code section 1714.
CEA also argues cases applying Civil Code section 1714
“consistently involve defendants that created a risk through
their own ‘property or person’ by introducing a dangerous
product or activity into society.” Unlike the asbestos that
produced injury in Kesner, for example, Victory did not use the
SARS-CoV-2 virus in its business or obtain any commercial
benefit from it, although it presumably did benefit from the
exemption that allowed it to continue operating during the
pandemic. But this distinction from Kesner and similar cases
does not exempt Victory from the default duty to use due care in
its operations to avoid foreseeable injuries. Civil Code
section 1714’s duty is not premised on the defendant’s use of
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
hazardous materials; indeed, several cases considering whether
the duty applies have involved entirely different facts. (See, e.g.,
Cabral, supra, 51 Cal.4th at p. 768 [tractor-trailer parked
alongside freeway]; Parsons v. Crown Disposal Co. (1997) 15
Cal.4th 456, 462–463 [garbage truck operating near bridle
path].) Nor does case law support limiting an employer’s duty
of care to “business-specific activities.” For example, Weirum v.
RKO General, Inc. (1975) 15 Cal.3d 40, 45–47, concluded a radio
station owed a duty to a driver killed in a car accident by
listeners who were participating in a radio-sponsored contest.
And Bigbee v. Pacific Telephone & Telegraph Co. (1983) 34
Cal.3d 49, 55–58, held that a telephone company’s duty of due
care extended to a phone booth user who was struck by a drunk
driver. We decline CEA’s invitation to read new limitations into
the statute.
Finally, amicus curiae See’s Candies urges us to adopt the
reasoning of a recent Court of Appeal decision declining to
impose a duty on a public employer to prevent the spread of
typhus. In City of Los Angeles v. Superior Court (2021) 62
Cal.App.5th 129, 132, the plaintiff alleged her husband
contracted typhus from unsanitary conditions at the police
station where he worked and passed the disease to her.
Although the case is similar in that it involved transmission of
a contagious disease to a spouse, it is different in significant
respects. Because the defendant in City of Los Angeles was a
public entity, its liability had to be based on statute rather than
the common law. (Id. at p. 138; Quigley v. Garden Valley Fire
Protection Dist. (2019) 7 Cal.5th 798, 803.) To support her claim
for a dangerous condition of public property under Government
Code section 835, the plaintiff analogized the city’s conduct to
that of the negligent premises owners in Kesner who failed to
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Opinion of the Court by Corrigan, J.
prevent the escape of asbestos from their properties. (City of Los
Angeles, at pp. 141–142.) The Court of Appeal rejected this
comparison, primarily because “Kesner involved private
companies rather than public entities,” and this court has held
that public entity liability under Government Code section 835
is not coextensive with private liability. (City of Los Angeles, at
p. 143; see Vasilenko v. Grace Family Church (2017) 3 Cal.5th
1077, 1093 (Vasilenko).) For that reason, Civil Code
section 1714 was inapplicable. (City of Los Angeles, at p. 143.
The court further observed that Kesner was distinguishable
because the plaintiffs there were injured from contact with the
hazardous workplace condition itself, carried home on the
workers’ clothing, whereas the plaintiff before it had contracted
typhus from her husband months after he first became ill. (Id.
at pp. 143–144.) The court therefore concluded the basis for
premises liability in Kesner, “hazardous substances that have
escaped the property and caused harm offsite,” was not
applicable to the facts alleged. (Id. at p. 144.) Because its
holding was premised on the limited scope of liability under
Government Code section 835, City of Los Angeles does not
support a categorial rule against employer liability in other
negligence contexts involving the transmission of infectious
diseases.
As noted, we agree that the mechanism of harm to third
parties is frequently different for a contagious disease than for
those injured outside the workplace by a toxin like asbestos.
Kesner’s holding might well be distinguished for this reason in
addressing premises liability, a question we do not reach here.
But the different mechanism of harm is not significant to the
question that is before us: whether Civil Code section 1714
imposes a duty of care on employers to prevent the spread of
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Opinion of the Court by Corrigan, J.
COVID-19 to employees and their household members. Nothing
in Kesner suggested its reliance on the default rule of Civil Code
section 1714 had anything to do with the specific mechanism of
injury alleged. We conclude the default rule of duty applies in
the COVID-19 context as well where plaintiffs have alleged that
the defendant, through its own actions, created an unreasonable
risk of the disease’s transmission. That conclusion does not end
the matter, however.
2.
Rowland Analysis
Civil Code section 1714 articulates a general duty of care.
But exceptions can be recognized when supported by compelling
policy considerations. (See Brown, supra, 11 Cal.5th at p. 217;
Regents, supra, 4 Cal.5th at p. 628; Cabral, supra, 51 Cal.4th at
p. 771.) That is the case here.
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.
(Cabral, supra, 51 Cal.4th at p. 771.) They are: “the
foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.” (Rowland, at p. 113.) Rowland’s multifactor test
“was not designed as a freestanding means of establishing duty,
but instead as a means for deciding whether to limit a duty
derived from other sources,” like Civil Code section 1714.
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Opinion of the Court by Corrigan, J.
(Brown, supra, 11 Cal.5th at p. 217, italics added.) “As we have
also explained, however, in the absence of a statutory provision
establishing an exception to the general rule of Civil Code
section 1714, courts should create one only where ‘clearly
supported by public policy.’ ” (Cabral, at p. 771, quoting
Rowland, at p. 112.
This analysis is conducted “at a relatively broad level of
factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.) We
analyze the Rowland factors to determine “not whether they
support an exception to the general duty of reasonable care on
the facts of the particular case before us, but whether carving
out an entire category of cases from that general duty rule is
justified by clear considerations of policy.” (Ibid.; see Kesner,
supra, 1 Cal.5th at pp. 1143–1144.) “In other words, the duty
analysis is categorical, not case specific.” (Regents, supra, 4
Cal.5th at p. 629.
“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.” (Regents, supra, 4
Cal.5th at p. 629; see Kesner, supra, 1 Cal.5th at p. 1145.) It
bears noting that different timeframes are relevant to different
aspects of the analysis. Whereas foreseeability issues are
assessed based on information available during the time of the
alleged negligence (see Kesner, at pp. 1145–1146), “our duty
analysis is forward-looking” in regard to policy issues
surrounding burdens that would be placed on defendants (id. at
p. 1152). We conclude that, although the transmission of
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Opinion of the Court by Corrigan, J.
COVID-19 to household members is a foreseeable consequence
of an employer’s failure to take adequate precautions against
the virus in the workplace, policy considerations ultimately
require an exception to the general duty of care in this context.
a.
Foreseeability Factors
“The most important factor to consider in determining
whether to create an exception to the general duty to exercise
ordinary care articulated by [Civil Code] section 1714 is whether
the injury in question was foreseeable.” (Kesner, supra, 1
Cal.5th at p. 1145.) In making this assessment, the court must
focus not on particularities of the defendant’s conduct and the
plaintiff’s injury, but on “whether the category of negligent
conduct at issue is sufficiently likely to result in the kind of
harm experienced that liability may appropriately be imposed
. . . .” (Cabral, supra, 51 Cal.4th at p. 772.
The first question here, then, is whether it was foreseeable
that an employer’s negligent failure to adhere to promulgated
workplace precautions against the spread of COVID-19 could
result in transmission of the virus to employees’ households.
Victory does not dispute that the foreseeability factor weighs in
favor of recognizing a duty of care. The highly contagious and
potentially deadly nature of COVID-19 had been widely
publicized by the late spring of 2020. In addition to general
public knowledge, employers allowed to continue operations
during this time were subject to strict regulations designed to
limit transmission of the virus. As relevant here, the City and
County of San Francisco’s April 29, 2020 health order mandated
specific health and safety precautions to prevent the spread of
COVID-19 at construction jobsites. Among other things,
employers like Victory were required to: screen workers for
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Opinion of the Court by Corrigan, J.
symptoms daily upon arrival at the jobsite; maintain social
distancing between workers except as strictly necessary for the
work; remove any infected worker from the jobsite immediately
and sanitize their work area; stagger trades to reduce worker
density; provide workers with personal protective equipment
appropriate for use in construction; and provide ventilation in
the work area to the extent possible.9
In Kesner, we found industry guidance relevant in
concluding it was reasonably foreseeable that asbestos fibers
carried home on workers’ clothing could cause injury to
household members. (Kesner, supra, 1 Cal.5th at pp. 1145–
1146.) Standards published by the Occupational Safety and
Health Administration and other industrial hygiene regulations
required that employers minimize employees’ exposure to
airborne asbestos. We concluded these sources put employers
on notice of the risks of take-home exposure. (See id. at
pp. 1146–1148.) Similarly here, government health orders
notified employers of the reasonable foreseeability that COVID-
19 could be transmitted not only within the workplace but also
to individuals who came into contact with infected employees.
The analogy is not perfect. Companies that used asbestos likely
had access to a deeper well of scientific knowledge about the
dangers of asbestos and methods for preventing its transfer
9
Plaintiffs contend the county’s health order provides the
appropriate standard of care, yet some amici curiae have raised
arguments concerning whether the health order created a
freestanding duty. Whether a local measure enacted on an
emergency basis could appropriately impose a tort duty
extending to employees’ household members is an issue not
encompassed in the certified questions. Accordingly, we express
no opinion on it.
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Opinion of the Court by Corrigan, J.
offsite than was available in the early months of the pandemic.
Nevertheless, we conclude sufficient information was provided
to employers like Victory that it was reasonably foreseeable
their failure to take adequate precautions against spread of the
virus could result in its transmission to employees’ households.
The second foreseeability factor in a Rowland analysis,
“the degree of certainty that the plaintiff suffered injury”
(Rowland, supra, 69 Cal.2d at p. 113), is relevant “primarily, if
not exclusively, when the only claimed injury is an intangible
harm, such as emotional distress” (Bily, supra, 3 Cal.4th at
p. 421). In contrast, the personal injury claims we address here
are both tangible and amenable to compensation. (See Regents,
supra, 4 Cal.5th at p. 630; Kesner, supra, 1 Cal.5th at p. 1148.
The third Rowland factor, closeness of the connection
between conduct and injury (Rowland, supra, 69 Cal.2d at
p. 113), “is strongly related to the question of foreseeability
itself” (Cabral, supra, 51 Cal.4th at p. 779). Generally, when the
injury is connected to the defendant’s negligent act only
distantly or indirectly, the risk of that type of injury from the
category of negligent conduct at issue is “likely to be deemed
unforeseeable. Conversely, a closely connected type of injury is
likely to be deemed foreseeable.” (Ibid.) This factor is distinct,
however, because it “accounts for third party or other
intervening conduct.” (Vasilenko, supra, 3 Cal.5th at p. 1086.
“Where the third party’s intervening conduct is foreseeable or
derivative of the defendant’s, then that conduct does not
‘ “diminish the closeness of the connection between defendant[’s]
conduct and plaintiff’s injury.” ’ ” (Ibid.; see Kesner, supra, 1
Cal.5th at p. 1148.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
Similar to Kesner, the relevant intervening conduct
alleged here is that an employee, having been exposed to the
virus at work, would contract COVID-19 and spread it to people
in his household. (See Kesner, supra, 1 Cal.5th at p. 1148.
Given the high transmissibility of the virus, it was reasonably
foreseeable that an employee negligently exposed at work would
transmit the virus to household members. “An employee’s
return home at the end of the workday” is a predictable and
expected occurrence. (Id. at p. 1149.) When, in doing so, the
employee serves as a vector in spreading a highly contagious
disease to household members, the transmission can be
attributed to the employer’s negligence in failing to take
reasonable precautions to prevent workplace exposure. (See id.
at pp. 1148–1149.
Victory protests that the highly contagious nature of
COVID-19 instead weighs against finding a close connection
between the misconduct and the injury. It notes that employees
may encounter numerous potential sources of exposure to the
virus every day. As a result, it argues, the origin of an
employee’s infection is ultimately impossible to trace. Because
the virus is highly contagious, an employee could have
contracted COVID-19 from an exposure while commuting to
work, stopping at the grocery store on the way home, or even at
work but without fault of the employer. Moreover, as amicus
curiae CEA points out, tracing the source of an infection would
be even more difficult at a construction jobsite than at most
workplaces because construction sites typically involve multiple
contractors and subcontractors working side by side, along with
other professionals. The situation here is thus distinguishable
from that in Kesner, where the only plausible source of asbestos
fibers brought home was the employee’s workplace. The nature
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
of the intervening conduct is also more complicated here than in
Kesner, where the conduct consisted only of the employee’s
return home at the end of the workday. Here, many factors
could affect the likelihood that an employee would contract and
transmit COVID-19. Employees may exercise varying levels of
diligence in properly wearing a mask, avoiding crowds, or
employing other precautions to prevent illness. The line
between an employer’s negligence and transmission of the virus
to household members is thus not as direct as in the asbestos
context.
Plaintiffs dismiss these arguments as attacks on
causation, stressing that the allegations of their complaint must
be accepted as true at this stage of the litigation. Yet the
examination of causal connections, which is what this factor
requires, is an inquiry akin to analyzing proximate causation.
Victory is correct in observing that the connection between
wrongful conduct and injury is somewhat attenuated here, and
we conclude that, overall, this factor weighs only slightly in
favor of recognizing a duty of care. “In determining whether one
has a duty to prevent injury that is the result of third party
conduct, the touchstone of the analysis is the foreseeability of
that intervening conduct.” (Kesner, supra, 1 Cal.5th at p. 1148.
Regardless of alternative sources of exposure, or variations in
the personal precautions employees undertake, it is plainly
foreseeable that an employee who is exposed to the virus
through his employer’s negligence will pass the virus to a
household member.
b.
Policy Factors
Although Rowland’s foreseeability factors generally weigh
in favor of recognizing a duty here, “foreseeability alone is not
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
sufficient to create an independent tort duty.” (Erlich v.
Menezes (1999) 21 Cal.4th 543, 552.) “A duty of care will not be
held to exist even as to foreseeable injuries . . . where the social
utility of the activity concerned is so great, and avoidance of the
injuries so burdensome to society, as to outweigh the
compensatory and cost-internalization values of negligence
liability.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 502.
Accordingly, we examine Rowland’s policy factors to determine
whether they support an exception to Civil Code section 1714’s
duty of care for this class of negligent conduct. (See Cabral,
supra, 51 Cal.4th at pp. 772–773.) In doing so, we are mindful
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 first policy factor concerns “the moral blame attached
to the defendant’s conduct.” (Rowland, supra, 69 Cal.2d at
p. 113.) “We have said that if there were reasonable
ameliorative steps the defendant could have taken, there can be
moral blame ‘attached to the defendants’ failure to take steps to
avert the foreseeable harm.’ ” (Vasilenko, supra, 3 Cal.5th at
p. 1091.) The failure to take reasonable precautions to prevent
harm is, of course, the essence of any negligence claim, and this
one is no exception. Plaintiffs argue Victory’s failure to follow
all precautions outlined in the county health order carries
significant moral blame because this conduct increased the risk
of COVID-19 infections. But Victory and its supporting amici
curiae observe that moral blame is typically found when the
defendant reaps a financial benefit from the risks it has created.
For example, in Kesner, we observed that commercial entities
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
“benefitted financially from their use of asbestos and had
greater information and control over the hazard than employees’
households.” (Kesner, supra, 1 Cal.5th at p. 1151; see Beacon
Residential Community Assn. v. Skidmore, Owings & Merrill
LLP (2014) 59 Cal.4th 568, 586.) While Victory and other
companies certainly did not profit from the spread of COVID-19,
it is less clear whether such companies may have benefitted
from ignoring health and safety protocols. During the early
months of the pandemic, essential businesses like Victory were
permitted to operate, presumably at a profit, but only if they
strictly adhered to precautions in government health orders.
Some of these precautions, such as quarantining workers
potentially exposed to the virus, acquiring and distributing
protective gear, and rearranging work schedules, may have
posed significant implementation costs. Disregarding those
standards would potentially result in related cost savings.
Relative inequality between the parties may also bear
upon moral blame. “We have previously assigned moral blame,
and we have relied in part on that blame in finding a duty, in
instances where the plaintiffs are particularly powerless or
unsophisticated compared to the defendants or where the
defendants exercised greater control over the risks at issue.”
(Kesner, supra, 1 Cal.5th at p. 1151.) Even if few initially knew
much about COVID-19 or its transmissibility, companies are
likely to have, or have access to, superior knowledge about
infection outbreaks in their workforce, an important
consideration given the highly contagious nature of the virus.
They also have a superior ability to control the overall workplace
environment to prevent infections, although individual
employees also bear some responsibility in this regard. On
balance, considering their greater access to knowledge and
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
control, we conclude the moral blame factor weighs in favor of
establishing a duty. (See Regents, supra, 4 Cal.5th at pp. 631–
632.
The next Rowland factor, the “policy of preventing future
harm is ordinarily served, in tort law, by imposing the costs of
negligent conduct upon those responsible.” (Cabral, supra, 51
Cal.4th at p. 781.) Placing the cost of negligence on responsible
parties is generally thought to induce behavioral changes that
will make the activity in question safer. (See Kesner, supra, 1
Cal.5th at p. 1150.) However, “[t]he policy question is whether
that consideration is outweighed, for a category of negligent
conduct, by laws or mores indicating approval of the conduct or
by the undesirable consequences of allowing potential liability.”
(Cabral, at pp. 781–782.) This factor thus examines both the
positive and the negative societal consequences of recognizing a
tort duty. (See Vasilenko, supra, 3 Cal.5th at pp. 1089–1090
[discussing harmful consequences that could result from a
finding of duty].
Public policy strongly favors compliance with health
orders to prevent the spread of COVID-19. Recognizing a duty
of care beyond the workplace could enhance employer vigilance
in this regard. However, there 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 employees or their household members outside the
workplace. Nor can they control whether a given employee will
be aware of, or report, disease exposure. There is also a
possibility that imposing a tort duty not covered by workers’
compensation could lead some employers to close down, or to
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
impose stringent workplace restrictions that significantly slow
the pace of work. The economic impact of such changes could be
substantial and is difficult to forecast. For businesses regarded
as essential and projects that serve the social welfare, slowed
operations or shutdowns could be particularly detrimental. On
balance, this factor is mixed or weighs slightly against imposing
a duty to nonemployees.
The next Rowland factor, and the one emphasized by
Victory and its supporting amici curiae, examines “the extent of
the burden to the defendant and consequences to the community
of imposing a duty to exercise care with resulting liability for
breach.” (Rowland, supra, 69 Cal.2d at p. 113.) Victory’s core
concern here is that recognizing a tort duty to employees’
household
members10
would
impose
enormous and
unprecedented financial burdens on employers, both in
10
Victory’s burden argument initially appears to rest on a
broader framing. It asserts: “There is simply no limit to how
wide the net will be cast: the wife who claims her husband
caught COVID-19 from the supermarket checker, the husband
who claims his wife caught it while visiting an elder care home,
the member of a sorority who claims a sister . . . serving on jury
duty caught it from the court bailiff . . . .” While we agree that
a duty to prevent secondary COVID-19 infections could
potentially encompass all these scenarios, plaintiffs have
proposed limiting the duty to household members of employees.
Consistent with that limitation, the certified question we have
been asked to answer is whether, under California law, “an
employer owe[s] a duty to the households of its employees to
exercise ordinary care to prevent the spread of COVID-19.”
(Kuciemba v. Victory Woodworks, Inc. (9th Cir. 2022) 31 F.4th
1268, 1270 [order certifying questions to the Supreme Court of
California].) Accordingly, we express no view on the propriety
of recognizing a duty beyond this limited context, nor any
burdens that would result from doing so.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
potential damages awards and litigation costs. We encountered
similar arguments in Kesner. Plaintiffs rely heavily on Kesner’s
analysis, but there are some significant differences that counsel
for a different result here.
As discussed, Kesner considered whether commercial
users of asbestos owe a duty of care, as employers or landowners,
to prevent secondary asbestos exposure by individuals offsite.
(Kesner, supra, 1 Cal.5th at p. 1140.) The plaintiffs’ decedents
had developed mesothelioma, a deadly cancer, through contact
with asbestos fibers carried home from work on a family
member’s clothing. (Id. at p. 1141.) In the Rowland analysis to
determine whether a duty was owed to such persons, the
defendants maintained that “[a]llowing tort liability for take-
home asbestos exposure would dramatically increase the volume
of asbestos litigation, undermine its integrity, and create
enormous costs for the courts and community.” (Id. at p. 1152.
They also argued the cases would be difficult to prove due to the
passage of time, given the long latency period between exposure
and development of the disease. (Ibid.) We responded to these
arguments “by observing that the relevant burden in the
analysis of duty is not the cost to the defendants of
compensating individuals for past negligence. To the extent
defendants argue that the costs of paying compensation for
injuries that a jury finds they have actually caused would be so
great that we should find no duty to prevent those injuries, the
answer is that shielding tortfeasors from the full magnitude of
their liability for past wrongs is not a proper consideration in
determining the existence of a duty. Rather, our duty analysis
is forward-looking, and the most relevant burden is the cost to
the defendants of upholding, not violating, the duty of ordinary
care.” (Ibid.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
While employers may already be required to implement
health and safety protocols to protect their employees from
COVID-19 infections, concluding they owe a duty to the
household members of employees has the potential to alter
employers’ behavior in ways that are harmful to society.
Because it is impossible to eliminate the risk of infection, even
with perfect implementation of best practices, the prospect of
liability for infections outside the workplace could encourage
employers to adopt precautions that unduly slow the delivery of
essential services to the public. Even San Francisco’s health
order, imposed early in the pandemic, acknowledged that
compliance cannot always be total and may give way “to the
limited extent necessary . . . to carry out the work of Essential
Businesses.” Moreover, if a precedent for duty is set in regard
to COVID-19, the anticipated costs of prevention, and liability,
might cause some essential service providers to shut down if a
new pandemic hits. This negative “consequence[] to the
community” (Rowland, supra, 69 Cal.2d at p. 113), while
hypothetical, cannot be ignored. A finding of duty may be
inappropriate if its recognition would deter socially beneficial
behavior. (See Southern California Gas Leak Cases (2019) 7
Cal.5th 391, 402.
Although Kesner cautioned that “the most relevant
burden” in a Rowland analysis is the cost of upholding a tort
duty (Kesner, supra, 1 Cal.5th at p. 1152), we did not completely
ignore the financial consequences that could result from
increased litigation. Indeed, Rowland’s formulation of this
factor incorporates such considerations, because it requires
analysis of the burden of “imposing a duty to exercise care with
resulting liability for breach.” (Rowland, supra, 69 Cal.2d at
p. 113, italics added.) We observed in Kesner that the
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
defendants had raised a “forceful contention” in pointing out
that a finding of duty “would open the door to an ‘enormous pool
of potential plaintiffs.’ ” (Kesner, at p. 1153.) Conceding that
there were legitimate concerns about the potential breadth and
unmanageability of claims, we nevertheless concluded these
problems did not require a categorical rule against tort liability
for take-home asbestos exposure. Instead, these concerns were
addressed by limiting the scope of the duty. (Id. at p. 1154.) We
determined it was sensible, in that context, to limit the duty to
prevent take-home asbestos exposure to household members
only. (Id. at pp. 1154–1156.
Plaintiffs here contend the burdens resulting from liability
for secondary COVID-19 infections can be adequately addressed
by imposing a similar limit. For this reason, they ask us to
recognize a duty of care extending only to individuals who share
a household with the employee. Kesner’s approach cannot be
translated so seamlessly into the present context, however. For
one thing, the “household members” limit made sense in Kesner
because the mechanism of injury there required frequent and
sustained contact with asbestos fibers on workers’ clothing and
effects. (See Kesner, supra, 1 Cal.5th at pp. 1154–1155.) Yet
transmission of the SARS-CoV-2 virus can occur in as little as
15 minutes of contact with an infected person or even after the
infected person has left the space. (See Centers for Disease
Control and Prevention, Scientific Brief: SARS-CoV-2
Transmission
<https://www.cdc.gov/coronavirus/2019-
ncov/science/science-briefs/sars-cov-2-transmission.html> [as of
July 6, 2023]. All internet citations in this opinion are archived
by
year,
docket
number
and
case
name
at
<http://www.courts.ca.gov/38324.htm>.) Drawing a limit at
household members would be more arbitrary in the COVID-19
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Opinion of the Court by Corrigan, J.
context because it would exclude a higher percentage of injured
people.
The broader reach of the proposed duty is another
difference, and the most important one, between this case and
Kesner. The duty we considered in Kesner involved a relatively
small pool of defendants: companies that used asbestos in the
workplace. There was also a much smaller pool of potential
plaintiffs: household members who were exposed to asbestos
from an employee’s clothing and then went on to develop
mesothelioma. Here, by contrast, a duty to prevent secondary
COVID-19 infections would extend to all workplaces, making
every employer in California a potential defendant. And unlike
mesothelioma, which is known to be “a very rare cancer, even
among persons exposed to asbestos” (Hamilton v. Asbestos Corp
(2000) 22 Cal.4th 1127, 1135−1136), the virus that causes
COVID-19 is extremely contagious, making infection possible
after even a relatively brief exposure. 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. “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.” (Ruiz v.
ConAgra Foods Packaged Foods LLC (E.D.Wis. 2022) 606
F.Supp.3d 881, 888 (Ruiz II).) In the past, “[e]ven when
foreseeability was present, we have . . . declined to allow
recovery on a negligence theory when damage awards
threatened to impose liability out of proportion to fault . . . .”
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
(Bily, supra, 3 Cal.4th at p. 398.) That prospect is certainly
presented by the duty rule proposed here.11
In addition to dire financial consequences for employers,
and a possibly broader social impact, the potential litigation
explosion facilitated by a duty to prevent COVID-19 infections
in household members would place significant burdens on the
judicial system and, ultimately, the community. As amicus
curiae CEA aptly put it, “If there was ever a ‘floodgates’
situation, this is it.” Courts would have to manage a very large
number of suits, and variations in individual exposure history
and precautions against the virus would likely make it difficult,
if not impossible, for the cases to be grouped into collective or
class actions. Fact-specific disputes could also make these cases
complex and time-consuming to litigate. For example, a motion
challenging proximate causation based on alternative sources of
exposure could not be brought, or resolved, until after the case
had proceeded through discovery. Expert testimony on
causation might be required, making resolution on summary
judgment difficult or impossible. Similarly, whether an
employer breached a duty of care would likely present highly
11
Plaintiffs counter that last year the Legislature failed to
pass an industry-supported bill that would have shielded
businesses from liability for direct or indirect transmission of
COVID-19. (Assem. Bill No. 1313 (2001–2002 Reg. Sess.) § 2.
We decline their invitation to draw significance from this fact.
“Legislative silence is an unreliable indicator of legislative
intent in the absence of other indicia. We can rarely determine
from the failure of the Legislature to pass a particular bill what
the intent of the Legislature is with respect to existing law. ‘As
evidences of legislative intent they [unpassed bills] have little
value.’ ” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1349, fn.
omitted.
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
fact-specific issues that could not be resolved without extensive
discovery or witness testimony. The burden on the courts posed
by a flood of complex cases that cannot be resolved in the early
stages of litigation would be daunting.
Given these considerations, we conclude “the burden to
the defendant and consequences to the community” weigh
against imposing a duty of care and thereby authorizing liability
for its breach. (Rowland, supra, 69 Cal.2d at p. 113
The final Rowland factor considers the availability and
cost of insurance. (Rowland, supra, 69 Cal.2d at p. 113.
Although the parties do not discuss this factor directly, some
amici curiae represent that commercial insurers have been
reluctant to provide coverage for losses related to COVID-19.
Published decisions in this area concern first party claims for
property damage and lost income due to COVID-19 (see, e.g.,
Marina Pacific Hotel & Suites, LLC v. Fireman’s Fund Ins. Co.
(2022) 81 Cal.App.5th 96) and may not give a reliable indication
of whether third party liability claims would be covered. Given
the dearth of information available at this time, we are unable
to draw any firm conclusions as to whether this factor supports
imposing a duty.
In sum, while the foreseeability factors and the policy
factor of moral blame largely tilt in favor of finding a duty of
care, the policy factors of preventing future harm and the
anticipated burdens on defendants and the community weigh
against imposing such a duty. “In assessing duty, however, we
do not merely count up the factors on either side.” (Vasilenko,
supra, 3 Cal.5th at p. 1092.) Some factors may be so weighty as
to tip the balance one way or the other. Here, the significant
and unpredictable burden that recognizing a duty of care would
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Opinion of the Court by Corrigan, J.
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.” (Elden v.
Sheldon (1988) 46 Cal.3d 267, 274.) In some cases, “the
consequences of a negligent act must be limited in order to avoid
an intolerable burden on society.” (Ibid.) This is such a case.
3.
Out-of-State Cases
The parties have alerted us to three decisions from other
states considering the issue now before us. All have declined to
recognize a duty for employers to prevent the spread of COVID-
19 outside the workplace.
In Madden, supra, 2021 WL 2580119, a flight attendant
contracted COVID-19 after she was required to attend in-person
training. She passed it to her husband, who died a month later
of complications from the virus. (Id. at p. *1.) The federal
district court, applying Maryland law, analyzed whether the
airlines owed a duty of care to the employee’s spouse using the
same seven-factor test California courts apply under Rowland.
(Id. at p. *4; see Kiriakos v. Phillips (Md. 2016) 139 A.3d 1006,
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
1033.) Although foreseeability and most other factors weighed
in favor of duty, the court found the societal consequences
“harder to justify” because imposing a duty “would significantly
expand the field of potential liability.” (Madden, at p. *6.) In
particular, “finding a duty . . . would leave employers litigating
countless COVID-19 third-party exposures simply by virtue of
contact with their employees during the pandemic. All that
would functionally be required for duty to attach would be
potential exposure at work and subsequent contact with a
foreseeable third party, which represents a relatively common
set of circumstances.” (Ibid.) After weighing all the factors, the
court concluded concerns in Maryland case law over “limiting
the class of prospective future plaintiffs” were dispositive and
precluded a finding of duty. (Id. at p. *8.
Similar concerns led to the same result in another case
alleging a spouse’s wrongful death from COVID-19, Ruiz II,
supra, 606 F.Supp.3d 881. The federal district court applied a
six-factor test under Wisconsin law to determine whether public
policy considerations precluded an employer’s liability for
transmission of COVID-19 to third parties. (Id. at p. 1, citing
Alvarado v. Sersch (2003) 262 Wis.2d 74, 84 [662 N.W.2d 350,
354].) Consistent with Madden, which it discussed at length,
the court held that Wisconsin public policy did not support
recognizing a duty of care. (Ruiz II, at pp. 882, 890.
Considering the ubiquity and high transmissibility of the virus,
the court concluded, “allowing recovery . . . would create too
unreasonable a burden on the defendant, and . . . would enter a
field that has no sensible stopping point.” (Id. at p. 883.
An Illinois trial court reached the same conclusion in
Iniguez, supra, 2021 WL 7185157, another third party wrongful
death case. In ruling on the employer’s motion to dismiss, the
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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
court applied a four-factor test balancing foreseeability and
likelihood of injury against the burden of preventing injury and
the consequences of placing this burden on the defendant. (Id.
at p. *2.) It concluded public policy did not support finding a
duty of care, observing “both the magnitude of guarding against
the burden of employees spreading Covid to third parties and,
perhaps more importantly, the consequences of placing that
burden on Defendant mitigate against the imposition of a duty
herein.” (Id. at p. *4.
As noted, these cases are not binding on us, and they can
be distinguished based on particular aspects of the different
states’ laws. For example, Maryland law is especially focused
on limiting duty in the third party context. (See Madden, supra,
2021 WL 2580119, at p. *8.) And, a day after the Ruiz II
plaintiffs filed suit, Wisconsin legislators passed a law shielding
businesses from civil liability related to COVID-19, a
development that made the state’s policy position on duty quite
clear. (See Ruiz II, supra, 606 F.Supp.3d at p. 889; Wis. Stat.
§ 895.476.) We have not relied on these out-of-state cases as
authority for our analysis. We discuss them merely to note that
their holdings are consistent with our conclusion that
California’s policy considerations, as articulated in Rowland, do
not support recognizing a duty of care to prevent third party
COVID-19 infections.
III. CONCLUSION
In conclusion, we answer the Ninth Circuit’s questions as
follows:
(1) If an employee contracts COVID-19 at the workplace
and brings the virus home to a spouse, the derivative injury rule
48

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KUCIEMBA v. VICTORY WOODWORKS, INC.
Opinion of the Court by Corrigan, J.
of California’s workers’ compensation law does not bar a
spouse’s negligence claim against the employer.
(2) An employer does not owe a duty of care under
California law to prevent the spread of COVID-19 to employees’
household members.
CORRIGAN, J.
We Concur:
GUERRERO, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
49

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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Kuciemba v. Victory Woodworks, Inc.

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Procedural Posture (see XX below
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

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Opinion No. S274191
Date Filed: July 6, 2023

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Court:
County:
Judge:

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Counsel:
Venardi Zurada, Mark L. Venardi, Martin Zurada and Mark Freeman
for Plaintiffs and Appellants.
Alan Charles Dell'Ario for Consumer Attorneys of California as Amicus
Curiae on behalf of Plaintiffs and Appellants.
Hinshaw & Culbertson and William Bogdan for Defendant and
Respondent.
O’Connor Thompson McDonough Klotsche and John W. Klotsche for
Construction Employers’ Association as Amicus Curiae on behalf of
Defendant and Respondent.
Eimer Stahl and Robert E. Dunn for the Chamber of Commerce of the
United States of America, National Federation of Independent
Business, National Association of Manufacturers, the California
Workers’ Compensation Institute, the California Chamber of

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Commerce, the Restaurant Law Center and the National Retail
Federation as Amici Curiae on behalf of Defendant and Respondent.
Munger, Tolles & Olson, Malcolm A. Heinicke, Benjamin J. Horwich,
Joseph Lee and Donald B. Verrilli for See’s Candies, Inc., and See’s
Candy Shops, Inc., as Amici Curiae on behalf of Defendant and
Respondent.
Fred J. Hiestand for the Civil Justice Association of California as
Amicus Curiae on behalf of Defendant and Respondent.

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Counsel who argued in Supreme Court (not intended for
publication with opinion):
Martin Zurada
Venardi Zurada LLP
101 Ygnacio Valley Road, Suite 100
Walnut Creek, CA 94596
(925) 937-3900
Allan Charles Dell’Ario
Attorney at Law
P.O. Box 359
Napa, CA 94559
(707) 666-5351
William Bogdan
Hinshaw & Culbertson LLP
50 California Street, Suite 2900
San Francisco, CA 94111
(415) 263-8127
Robert E. Dunn
Eimer Stahl LLP
99 South Almaden Boulevard, Suite 642
San Jose, CA 95113
(408) 889-1690
Benjamin J. Horwich
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
(415) 512-4066

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Opinion Information

Date:	Docket Number:
Thu, 07/06/2023	S274191