Corby Kuciembas contracted a serious case of COVID-19 that caused her to be hospitalized where she was “kept alive on a respirator.” She claims she got the virus from her husband Robert, who also got COVID, and brought it home to her. Plaintiffs claimed the husband’s employer failed to take the health precautions prescribed by San Francisco County to prevent the spread of the disease. They sued and lost in state court due to the exclusivity provisions of California Workers’ Compensation (WCA) law. They refiled in federal court and have been embroiled in a battle between the two jurisdictions ever since. Now, the California Supreme Court has ruled on the “legal sufficiency” of plaintiffs’ pleadings.

Corby and Robert Kuciembas, who will be referred to by their first names to avoid confusion, both sued Robert’s employer, Victory Woodworks, Inc., (Victory) in California Superior Court for negligence, premises liability, and loss of consortium in 2020. Their cases were dismissed. They refiled in federal court, where Victory again claimed plaintiffs’ case was barred by WCA, which says that Victory’s “duty to provide a safe workplace d(oes) not extend to nonemployees like Corby, who contract a virus away from the jobsite.” Plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit then asked the California Supreme Court a series of “certified questions,” which are formal requests from one court to another to provide clarity. The California Supreme Court provided that clarity in a unanimous 7-0 opinion authored by Associate Justice Carol A. Corrigan on July 6. The Court ruled that the WCA does not bar Corby’s negligence claim against Victory. However, the Court also ruled that Victory does not owe a tort-based duty of care to prevent the spread of COVID-19 to the “household members of its employees.”

Corrigan explained that the plaintiffs’ case is currently on appeal under the Federal Rules of Civil Procedure. She wrote that the City and County of San Francisco issued health and safety guidelines in April 2020. When a group of new employees was hired by Victory, then transferred to work at its San Francisco location, Robert got COVID and Corby became ill soon after.

The opinion details the procedures of California’s workers’ compensation system that is designed to compensate employees for work-related injuries. The system holds the employer liable for personal injuries and death and provides “swift and certain payments” in exchange for “a wider range of damages potentially available in tort.” This arrangement also precludes liability for injuries to any of the employee’s dependents. Its language calls for “nuanced” analyses of third-party claims like Corby’s since most of them are barred by WCA’s exclusivity.

The Court next explained the “derivative injury rule” that would govern Corby’s entitlement to damages. While it is true that Corby would not have been injured, but for Robert’s COVID, the court said that more than “but for” causation is required to overcome the WCA’s “exclusivity bar.” Thus, Corby, as a third party, could sue only if Corby was legally dependent on Robert’s injuries.

Citing a series of relevant precedents, the opinion concluded that “a mere causal link” between Corby’s personal injury and Robert’s “is not sufficient” to bring Corby’s claim “within the scope of the derivative injury rule.” Comparing Corby’s case to that of a fetus who was injured when her mother was exposed to toxic fumes, the court said, “The passage of a harmful substance through an intermediary does not…render the resulting injury derivative of or collateral to an injury sustained by the intermediary.”

However, the California court found that other state courts had concluded that “derivative injury principles “do not bar take-home COVID-19 claims.” Finding these decisions persuasive, though not binding, Corrigan concluded that the “exclusivity provisions of the WCA do not bar Corby’s tort claims against Victory.” But Corby faced another legal hurdle—“whether California law imposes a duty of care on employers to prevent the spread of COVID-19 to their employees’ household members.

In making this determination, the Supreme Court referred to California Civil Code Section 1714 which says that “Everyone is responsible for an injury occasioned to another…by want of ordinary care…and each person has a duty “to exercise, in his or her activities, reasonable care for the safety of others.” That led the Court to plaintiff’s allegation that Victory had not only ignored San Francisco’s COVID-related health and safety orders, but it also found the company violated California’s duty of care laws when it transferred unsafe workers to its San Francisco facility. The court agreed that Victory, through its own actions, “created an unreasonable risk of the disease’s transmission.”

But the analysis did not end there. The court went on to see whether foreseeability, certainty, and the connection between plaintiff and defendant supported Victory’s liability or whether policy considerations “ultimately required an exception to the general duty of care.” The opinion said that “Public policy strongly favors compliance with health orders to prevent the spread of COVID-19.” However, it also noted that “There is only so much an employer can do.”

Corrigan wrote, “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.” She also worried about the “dire financial consequences for employers” and the “potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members that would place significant burdens on the judicial system and, ultimately, the community.” She concluded, “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.”

The “floodgates” of litigation would be open.

The Ninth Circuit’s questions are now answered: The derivative injury rule does not bar Corby’s suit, but she is owed no duty of care by her husband’s employer to prevent the spread of COVID. Plaintiffs’ action, dismissed by Judge Maxine M. Chesney of the Northern District of California, remains dismissed.