A California appeals court permitted a Los Angeles County wrongful death lawsuit for COVID-19 “take-home” liability to proceed.  The plaintiff claims that plaintiff’s employer’s negligence resulted in plaintiff’s transmitting COVID-19 to plaintiff’s non-employee spouse, resulting in the spouse’s death.  Though raising the specter of broad liability for pandemic-related injury and death, the court did not determine if the employer had an enforceable legal duty.  Other defenses protect businesses against personal injury claims arising from the COVID-19 pandemic, including potential “take-home” claims.

Plaintiffs’ Claims and the Court’s Decision

In Matilde Ek, et al. v. See’s Candies, Inc., et al., plaintiffs allege that in March 2020, the plaintiff, defendants’ employee, contracted COVID-19 at work.  While convalescing at home, plaintiff allegedly transmitted COVID-19 to her non-employee husband, resulting in his death.  The family filed a complaint for negligence and premises liability against the employer.  The family claims the employer failed to take adequate COVID-19 safety precautions by requiring employees, some of whom were allegedly symptomatic, to work closely together despite the risk of infection and transmission to non-employees.

Defendants moved to dismiss, asserting the suit was barred by the workers’ compensation law because decedent’s infection was derivative of the employee’s.  The trial and appellate court rejected defendants’ position.  The courts distinguished the claims from classic derivative causes of action barred by the workers’ compensation law, like loss of companionship or lost income due to caring for the injured worker.  The courts analogized to cases holding that the workers’ compensation law does not bar asbestos “take-home” liability, or other injury to third parties from toxic substances on or about the employee’s person.  The appellate court emphasized that it expressed no opinion if the employer had a broader duty of care to decedent, and that its ruling is limited to the narrower workers’ compensation issue.  It observed, however, that the duty “would appear worthy of exploration.”


Ek did not address if the employer had a duty to the employee’s husband.  Furthermore, it discussed a potential limitation on any such duty, citing California precedent that asbestos take-home liability is limited to persons in the employee’s household because public policy favors a manageable, definable class of potential plaintiffs.  Ek does not address other defenses that employers, premises owners/tenants, and other businesses may employ against COVID-19 “take-home” liability.  Lack of notice of a specific COVID-19 risk at the premises, such as an allegedly symptomatic employee, may assist the defense.  Adherence with applicable standards, regulations, and guidelines may disprove negligence allegations.  Furthermore, plaintiff may offer nothing but speculation that the employee’s infection occurred at the workplace, or that the non-employee contracted COVID-19 from the employee.

The COVID-19 pandemic may lead to claims against business arising from on- and off-premises infection.  Even if not barred by workers’ compensation rules, limitations on the scope of defendant’s duty of care, notice, and speculative causation may be effective defense arguments. The case is Matilde Ek, et al.  v. See’s Candies, Inc., et al., case number 20STCV49673, in the Superior Court of the State of California, County of Los Angeles.  The decision was issued by the California Court of Appeal, Second Appellate District.

This alert does not purport to be a substitute for advice of counsel on specific matters.

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