The California Supreme Court has answered in the negative the Ninth Circuit Court of Appeals’ certified question regarding “take-home” COVID-19 exposure (see Federal Appeals Court Asks California If Covid-19 “Take Home” Suits Can Proceed).

  • Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

The question arose in Corby Kuciemba, et al. v. Victory Woodworks, Inc., in which plaintiffs claimed the non-employee plaintiff contracted COVID-19 from the employee plaintiff, who allegedly contracted the virus at work and brought it home. The court’s holding that in California, employers do not owe a duty of care to prevent the spread of COVID-19 to members of their employees’ households, could influence pandemic-related injury cases nationwide.

Public Policy Prevails

The court held that compelling policy considerations weigh against imposing such a duty. Businesses, courts, and the community would face a “significant and unpredictable burden” if employers had a duty to protect non-employees from COVID-19. Establishing this duty would constitute a “dramatic expansion of liability” and thereby “throw open the courthouse doors to a deluge of lawsuits which would be both hard to prove and difficult to cull early in the proceedings.” “Take-home” COVID-19 litigation would burden the courts with complex and time-consuming litigation likely requiring extensive discovery, witness testimony, and expert opinion. The potential damages and defense costs would impose “unprecedented” financial burden on employers.

In the court’s view, these risks could encourage employers to adopt COVID-19 precautions that slow or stop essential services. Ultimately, the court reasoned that recognizing a legally enforceable duty in this context had the “potential to destroy businesses and curtail, if not outright end, the provision of essential public services.” Therefore, it declined to do so.

Limits of the Court’s Decision

The court implied, however, that but for these overriding policy considerations, imposing the duty might be appropriate. For example, the court said that spread of COVID-19 from employees to their households is reasonably foreseeable, and resulting injury reasonably certain. The court said employers could have moral blame for failing to adhere to safety protocols, since they have the ability to control the workplace and knowledge of outbreaks, and may save costs by not following safety protocols. The court indicated that future developments may change the calculus and lead to a different outcome.

The court also held a non-employee spouse-plaintiff’s claim against an employer in this context is not barred by California’s workers’ compensation law. According to the court, California’s derivative-injury doctrine only bars claims that are legally dependent on the employee’s injury, as opposed to claims for independent injury. Because the non-employee spouse-plaintiff did not need to prove that the employee plaintiff suffered a legal injury, her claim was not legally dependent.


This is a strong ruling for employers in California. Though the decision limits California employers’ use of workers’ compensation as a defense to “take home” COVID-19 claims, they can defend such claims on lack of duty. That the high court of California paid such careful attention to practical considerations will likely influence courts in other states to do the same if faced with similar lawsuits.

However, other states may not find the same compelling policy considerations in their jurisdictions that the court identified in California. In those situations, employers may face “take home” COVID-19 claims and the burdens the court recognized here. Employers facing such claims may deploy defenses other than a lack of duty, such as speculative causation, lack of notice, and adherence to safety protocols.

The case is Corby Kuciemba, et al. v. Victory Woodworks, Inc., case number S274191, in the Supreme Court of the State of California.

For more information, please contact Abbie Eliasberg Fuchs, Alexander Anolik, Daniel R. Strecker or the Harris Beach attorney with whom you usually work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.