Kuciemba v. Victory Woodworks, Inc.

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.

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.

1

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

2

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

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

4

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’

5

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

6

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.

7

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]

8

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

9

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

10

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

11

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.

12

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,

13

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,

14

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

15

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.)

16

KUCIEMBA v. VICTORY WOODWORKS, INC.

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.

17

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

18

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

19

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

20

KUCIEMBA v. VICTORY WOODWORKS, INC.

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.

21

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

22

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,

23

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

24

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.

25

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

26

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

27

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

28

KUCIEMBA v. VICTORY WOODWORKS, INC.

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.

29

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

30

KUCIEMBA v. VICTORY WOODWORKS, INC.

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

31

KUCIEMBA v. VICTORY WOODWORKS, INC.

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.

32

KUCIEMBA v. VICTORY WOODWORKS, INC.

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.)

33

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

34

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

35

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

36

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

37

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

38

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.

39

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.)

40

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

41

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

42

KUCIEMBA v. VICTORY WOODWORKS, INC.

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 . . . .”

43

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.)

44

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

45

KUCIEMBA v. VICTORY WOODWORKS, INC.

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,

46

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

47

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

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

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Kuciemba v. Victory Woodworks, Inc.

__________________________________________________________

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

__________________________________________________________

Opinion No. S274191

Date Filed: July 6, 2023

__________________________________________________________

Court:

County:

Judge:

__________________________________________________________

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

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.

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