On May 6, 2020, Robert Kuciemba began working for defendant Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, without taking COVID-19 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 with COVID and allegedly 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.
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 federal district court granted a motion to dismiss without leave to amend. A timely appeal was filed in the 9th Circuit Court of Appeals.
After briefing concluded, the California Court of Appeal decided See’s Candies, Inc. v. Superior Court, 288 Cal. Rptr. 3d 66 (Cal. Ct. App. 2021). Faced with essentially identical facts to those here, the Court of Appeal largely agreed with the Kuciembas’ arguments, and held that the derivative injury rule does not bar claims brought by an employee’s spouse against an employer for injuries arising from a workplace COVID-19 infection.
The 9th Circuit Court of Appeals noted that See’s Candies – although instructive – does not eliminate the need for clear guidance from California’s highest court. “In addition, no controlling precedent resolves whether Victory owed Mrs. Kuciemba a duty of care.”
Thus the 9th Circuit panel certified to the Supreme Court of California the following questions: (1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?
And yesterday, the California Supreme Court answered both questions in the case of Kuciemba v. Victory Woodworks, Inc. –S274191 (July 2023).
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.
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. This aspect of workers’ compensation law is sometimes called the derivative injury doctrine.
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. “Determining the scope of workers’ compensation exclusivity can be analytically challenging.”
The answer to the second question, however, is also no. Although it is foreseeable that an employer’s 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.”
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