OPINION
This case is one of many arising out of the COVID-19 pandemic. Corby Kuciemba was hospitalized with a severe case of COVID-19 in the summer of 2020. She and her husband, Robert Kuciemba, claim Mr. Kuciemba was exposed to the virus while working for Victory Woodworks and that he sickened Mrs. Kuciemba in their home. The Kuciembas sued Victory, alleging that the companys actions “were a substantial factor in causing” Mrs. Kuciembas illness and that Victory is liable for negligently failing to protect its employees from the virus and flouting the public health regulations in place at the time.
On appeal, we determined that this case involved questions of California tort law of significant public importance but with no controlling precedent. We certified two questions to the Supreme Court of California, which accepted the certification and issued a decision on July 6, 2023. In light of the courts definitive answer, we affirm the district courts dismissal.
I. Background 1
In March 2020, San Francisco issued a shelter-in-place order in response to the COVID-19 pandemic. The city relaxed the restrictions two months later in a revised order (the “Health Order”) allowing certain essential industries, including the construction industry, to reopen. To limit the spread of COVID-19, the Health Order imposed stringent requirements on business operations, including a mandate to prepare and post a social distancing policy and to disinfect high-touch surfaces frequently.
While the Health Order was in place, Mr. Kuciemba began working for Victory, a furniture and construction company, at a jobsite in San Francisco. About two months later, workers at a different Victory jobsite contracted COVID-19. Instead of instructing the non-infected workers from the other jobsite to quarantine, Victory transferred them to Mr. Kuciembas jobsite. One of the transferred workers was infected at the time of the transfer, and Mr. Kuciemba was exposed to the virus.
In their personal lives, the Kuciembas adhered to the Health Orders directive, minimizing their exposure to others and leaving home only for essential purposes. Their only exposure to other people came from Mr. Kuciembas interactions with his co-workers, and they assert that Mr. Kuciemba was “most likely exposed to COVID-19” at work. Mrs. Kuciemba began experiencing symptoms of COVID-19 about two weeks after Victory transferred the workers, and she eventually tested positive. She developed severe respiratory symptoms and was hospitalized, requiring a respirator to breathe.
The Kuciembas sued Victory in Superior Court in California. They alleged that Victorys violations of federal, state, and municipal regulations and its failure to protect its employees from COVID-19 substantially caused Mrs. Kuciembas severe infection. Mrs. Kuciemba brought claims for negligence, negligence per se, and premises liability, and Mr. Kuciemba brought a claim for loss of consortium. Victory removed the case to federal court and filed a motion to dismiss. The district court granted Victorys motion, holding that Californias derivative injury doctrine barred the Kuciembas claims and that an employers duty to provide a safe workplace to employees does not extend to nonemployees sickened by a virus outside of the employers premises.
II. Analysis
Following briefing and argument, we concluded that no controlling precedent resolved whether the derivative injury doctrine barred Mrs. Kuciembas claims and whether Victory owed Mrs. Kuciemba a duty of care. We further determined that a decision by the Supreme Court of California could control the outcome and that this appeal presents issues of significant importance for the State of California, including the scope of an employers tort liability for the spread of COVID-19. We requested that the Supreme Court of California decide two certified questions:
1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does Californias derivative injury doctrine bar the spouses claim against the employer?
2. 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 Supreme Court of California granted our request and has now issued its decision.
As to the first question, the Supreme Court of California held that Californias derivative injury doctrine—under which workers compensation benefits generally “provide the exclusive remedy for third party claims if the asserted claims are ‘collateral to or derivative of’ the employees workplace injury”—does not bar Mrs. Kuciembas tort claims. Kuciemba v. Victory Woodworks, Inc., No. S274191, ––– Cal.5th ––––, ––– Cal.Rptr.3d ––––, ––– P.3d ––––, –––– – ––––, 2023 WL 4360826, at *3–9 (Cal. July 6, 2023) (citations omitted). The court explained that most derivative injury claims seek recovery for losses sustained because of “a loved ones disability or death, rather than for the plaintiffs own [physical] injuries or death.” Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *6. Mrs. Kuciembas negligence claims, however, “are not legally or logically dependent” on an injury Mr. Kuciemba sustained at work. Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *9. The “ ‘but for’ causal link” between Mrs. Kuciembas injury and Mr. Kuciembas COVID-19 exposure is therefore “insufficient, on its own, to render the claims derivative.” Id. Thus, the claims are not barred by the exclusivity provisions of the California Workers Compensation Act. Id.
The Supreme Court of California held as to the second question that “[a]n employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees household members.” Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *21. The analysis of the court is detailed and bears reading with respect to California tort law. To begin, the court held that “the default rule of duty applies in the COVID-19 context as well where plaintiffs have alleged that the defendant, through its own actions, created an unreasonable risk of the diseases transmission.” Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *12.
Although California “Civil Code section 1714 articulates a general duty of care,” compelling policy considerations can support exceptions. Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *13. The court pointed to Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), as identifying “several considerations that may, on balance, justify a departure from Civil Code section 1714s default rule of duty.” Id. Such considerations include, among others, the foreseeability of harm to the plaintiff, the moral blame attached to the defendants conduct, the policy of preventing future harm, and the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach. Id. The court identified foreseeability as “the most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care” under section 1714. Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *14 (quoting Kesner v. Superior Court, 210 Cal.Rptr.3d 283, 384 P.3d 283, 291 (2016)). On this point, the court concluded that “it is plainly foreseeable that an employee who is exposed to the virus through his employers negligence will pass the virus to a household member.” Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *16. The court also concluded that the “moral blame factor weighs in favor of establishing a duty” primarily because Victory had greater access to knowledge and control to prevent the spread of COVID-19 on its premises than did the plaintiffs. Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *17.
Despite its conclusions with respect to foreseeability and moral blame, the court wrote that “while the foreseeability factors and the policy factor of moral blame largely tilt in favor of finding a duty of care, the policy factors of preventing future harm and the anticipated burdens on defendants and the community weigh against imposing such a duty.” Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *20. Important to this analysis of the Rowland factors was the recognition that “[s]ome factors may be so weighty as to tip the balance one way or the other.” Id. The court went on to conclude:
Here, the significant and unpredictable burden that recognizing a duty of care would impose on California businesses, the court system, and the community at large counsels in favor of an exception to the general rule of Civil Code section 1714. Imposing on employers a tort duty to each employees household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings.
Id.
With these considerations in mind, the court concluded that “ ‘the burden to the defendant and consequences to the community’ weigh against imposing a duty of care” here. Id. ––– Cal.Rptr.3d ––––, ––– P.3d –––– – ––––, 2023 WL 4360826 at *19. As a consequence, because Victory owed no duty to Mrs. Kuciemba, we affirm the district courts dismissal of the Kuciembas First Amended Complaint.
AFFIRMED.
McKEOWN, Circuit Judge: