Robert Kuciemba began working for Victory Woodworks in 2020, after San Francisco issued a health order allowing certain critical industries to reopen in the wake of the COVID-19 pandemic.
Robert and his wife, Corby, allege that they strictly complied with various orders related to COVID-19, followed all recommended safety procedures and minimized their exposure to other people.
The only person in their household who had frequent contact with others was Robert, thanks to his job at Victory.
According to the Kuciembas, Victory knowingly transferred workers from an infected construction site to Robert’s site without following the safety procedures required by the city’s health order. Robert was forced to work in close contact with these employees, they claimed, and contracted COVID-19, which he brought home.
Corby, who is over 65 and at high risk of contracting the virus, tested positive on July 16, 2020 and developed severe respiratory symptoms. She was hospitalized for over a month and kept alive on a ventilator.
The Kuciembas filed a lawsuit alleging that Victory caused Corby’s injuries by violating the health order. Victory moved to dismiss, arguing that California’s derivative injury doctrine precluded the suit. the the district court granted the motion and the Kuciembas appealed.
Finding no compelling precedent, the Ninth Circuit went to the California Supreme Court.
“This appeal … presents issues of significant public importance to the State of California: the extent of an employer’s tort liability for the spread of COVID-19, the application of the public policy exception to Cal. Civil. The general duty of care of Code § 1714(a) in the context of a pandemic, and — perhaps most radically — whether California’s derivative injury doctrine applies to injuries actually resulting from injury to the work of an employee,” the federal appeal board wrote.
The parties disputed the scope of California’s derivative damages doctrine and whether it reached the facts of the case, the panel explained.
Victory argued that the doctrine prohibits all claims against an employer that actually arise from an employee’s injury on the job, while the Kuciembas argued that the doctrine applies much more narrowly to claims that, logically or legally , require a plaintiff to demonstrate harm to a third party, such as claims for loss of consortium or wrongful death.
None of the California courts have ruled on whether public policy favored creating an exception to the duty to care for employers who negligently infect family members of their employees with the COVID-19, the panel said.
Because the case presents “primary issues” for the state’s highest court to address, the Ninth Circuit certified two issues to the California Supreme Court:
- If an employee contracts COVID-19 at work and brings the virus back to their spouse, does the California derivative injury doctrine prohibit the spouse’s claim against the employer?
- Under California law, does an employer have a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?
To read the command Kuciemba vs. Victory Woodworks, Inc.Click on here.
Why is this important: The case presents significant issues about employer liability and derivative injury doctrine protections, which now have to be decided by the California Supreme Court.
