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Ex. DUT-CA-019 Standing duty Primary source read

Published opinion: See's Candies, Inc. v. Superior Court (Ek), No. B312241 (Cal. Ct. App. Dec. 21, 2021), 73 Cal.App.5th 66

See's Candies, Inc. v. Superior Court: a wrongful-death action alleging that an employee contracted COVID-19 at work 'because of defendants' failure to implement adequate safety measures' and infected her husband is not barred by workers' compensation exclusivity; the derivative-injury doctrine does not reach the household member's claim

California Court of Appeal, Second Appellate District · California (Court)

The COVID Project

The record

Jurisdiction
California
Level
Court
Authority
Labor Code sections 3600, 3602 (workers' compensation exclusivity); Civil Code section 1714; Labor Code sections 6400-6404
Issued
2021-12-21 Dec. 21, 2021
Effective
2021-12-21
End
n/a (judicial decision; the conduct pleaded is of 2020)
In force
Dec. 21, 2021 (no end date recorded; counted as in force for 120 days)
Limitation types
Workplace rulesStanding duty
Addressees
  • employers
Character
adjudication
Collection
Standing duties: California DUT-CA

Operative words

Plaintiffs allege that Mrs. Ek, defendants' employee, contracted COVID-19 at work because of defendants' failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.

Penalty

Civil liability in tort (wrongful death, negligence) outside workers' compensation exclusivity.

What it required

Held that an employer whose employee alleges infection at work through the employer's failure to implement 'known, appropriate and necessary safety mitigation measures' (physical distancing among them) answers in tort to the employee's household for the resulting death, so that the pandemic protocols were, in California, the measure of an employer's civil exposure beyond the workers' compensation system. Character as recorded: adjudication (workplace duty construed).

Retrieval note

The court's own slip opinion ('Filed 12/21/21', 'CERTIFIED FOR PUBLICATION'); the reporter citation and the Supreme Court's denial of review (Apr. 13, 2022) are from secondary sources and should be pin-checked. The complaint quoted in the opinion alleges that the employer's workers 'complained directly and through their union representative... about the close proximity of their work environment[,] requesting safety mitigation efforts', and that the employer 'knew and should have known that the workers' duties, locations within the plant, and physical distancing from one another, created a foreseeable and high risk of viral infection'. The court expressly reserved whether the employer owed the husband a duty of care ('we have no occasion to decide whether defendants owed Mr. Ek a duty of care'); the Supreme Court answered that question for nonemployees in Kuciemba (DUT-CA-020). Decided after Q3 2021; cited for the standard of care applied to 2020 conduct.