Potential Liability for Non-Employee COVID-19 Infections: See’s Candies, Inc. v. Superior Court

By Christina S. Saad, Esq.

Employers may be held liable for COVID-19 (“COVID”) infections of non-employees, as evidenced by a recent California Court of Appeal decision.

In the recent case of See’s Candies, Inc. v. Superior Court, (Dec. 21, 2021, No. B312241) [2021 Cal. App. LEXIS 1076], the California Court of Appeal, Second District, found that an employer that has not taken adequate measures to prevent the spread of COVID in the workplace may be held liable if an employee contracts COVID at work and spreads it to a third-party, such as a spouse, if the third-party suffers a resulting injury. The court did not resolve the extent to which the employer’s duty of care reaches, however.

In See’s Candies, Matilde Elk caught COVID in March 2020 from working in close proximity to others on a packing line for her employer, Elk quarantined in her home, where her husband resided. Her husband subsequently caught COVID and died a month later.

Elk and her daughters sought wrongful death damages, including for loss of love and care. Elk claimed her husband’s death results from her employer’s failure to implement adequate safety measures, such as social distancing in the packing line room and restrooms.

Under the California Worker’s Compensation Act, Labor Code §§ 3200-6002, an employer’s liability for an employee’s workplace injury is generally limited to worker’s compensation. California courts had long established that this restriction on workplace injury remedies also applies to injuries collateral to or derivative of a workplace injury. See’s Candies argued that this rule, known as the “derivative injury doctrine,” should therefore limit its remedies to Ms. Elk’s family members to worker’s compensation, rather than open the door to widespread civil liability and remedies.

The court disagreed with See’s Candies. The court paralleled the circumstances in this case to a 1997 California Supreme Court Case, Snyder v. Michael’s Stores, Inc. (16 Cal. 4th 991) in which a minor with cerebral palsy and other disabling conditions claimed such conditions were a resulting injury of her exposure to toxic levels of carbon monoxide while in utero. This exposure occurred because her mother, while pregnant, was working as an employee at Michael’s when an incident involving carbon monoxide occurred. The Court found that the derivative injury doctrine did not remove the company’s civil liability to the baby because the harm to the baby was not dependent on, or derivative of, the harm to the mother. Rather, the harm to the baby was a result of her own exposure to carbon monoxide as a fetus.

In See’s Candies, the appellate court held that the derivative injury doctrine only applies when the third-party’s injury is derivative of the employee’s injury in the purest sense, meaning the injury to the third-party would not have happened in the absence of the injury to the employee. The court explained that, like the mother in Snyder, Elk merely served as a conduit of a pathogen and whether she had been harmed by the pathogen itself was irrelevant to the claims of her family members.

What Does this Mean for Your Association?
This case serves as a reminder that the best way your Association can protect itself from COVID liability is to follow the applicable governmental orders designed to help prevent the spread of COVID. As we all know, these orders change from time to time.

If you have any questions regarding the current orders or how to implement them, please contact us. We are here to help!