Nero fiddled, and I really don’t know how white powder made its way into the White House. But I do know that the California Supreme Court just issued an opinion in Kuciemba v. Victory Woodworks that will be incredibly hurtful to the working class during the next pandemic. I wonder how the California legislature will react.
Workers’ compensation exclusivity would not prevent one spouse from pursuing a negligence claim against the other spouse’s employer when the subject of the first spouse’s suit is independent from the work-related injury or disease of the second spouse. How could it? (See Kuciemba, slip op. at 19-20). But the California Supreme Court nevertheless said that the first spouse can’t bring a negligence suit for her own injuries from COVID-19 for “policy reasons.” (See Kuciemba slip op. at 1-2).
The facts are simple:
On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, without taking precautions required by the county’s health order, Victory transferred a group of workers to the San Francisco site from another location where they were probably exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. He carried the virus home and transmitted it to his wife, Corby, either directly or through her contact with his clothing and personal effects. Corby was hospitalized for several weeks and, at one point, was kept alive on a respirator.
Victory has been determined to have no liability for its negligent actions. It’s not just that Corby cannot prove she was made sick by Victory. Rather, Corby has been determined to have no right to attempt to prove she was made sick by Victory’s conduct.
It comes down to this: Imagine you are one of those unfortunate essential workers (often of color, by the way) compelled to work (not from home) during the next pandemic (which, trust me, is coming). Your employer negligently exposes you to the next virus (Is this difficult to imagine? It represents the facts of this case). You bring the virus home. If you get sick, you are left with an inadequate workers’ compensation remedy (assuming you can even prove the workplace “caused” your contraction of the virus). If you get your family and everyone else in your household sick (with or without your becoming sick), their illness is damnum absque injuria (damage without any injury action).
What does this really mean? To the majority in Kuciemba, the business community has been spared the risk of “unlimited” liability. As I teach my torts classes, there has never been expansion of tort law that was not accompanied by the business claim that liability had been “infinitely” increased. In some eras, that argument has been successful; in others, it has not.
The message now being conveyed by the courts to employees seems to be that (in an array of workplace contexts under various statutes) workplace safety must be obtained outside the confines of existing general law. I suspect that unions will take notice and that collective bargaining over safety may look very different in the near future. I also wonder — as I have said — what impact such judicial conclusions will have on future lawmaking.
Somewhat more subtly, the continuous development of liability immunity transfers the costs of injury (which, like energy, can never be destroyed, only transformed) from employers and other large corporations to the general citizenry. Those costs will either be “picked up” by the federal government (in the form of taxes — COVID-style or otherwise) — or will manifest in other ways.
Those working from home may not immediately notice. But as every dystopian novel fan knows, eschewed rescue invites danger.