FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORBY KUCIEMBA; ROBERT No. 21-15963
KUCIEMBA,
D.C. No.
Plaintiffs-Appellants, 3:20-cv-09355-
MMC
v.
VICTORY WOODWORKS, INC., a OPINION
Nevada Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted March 10, 2022
Submission Withdrawn April 21, 2022
Resubmitted July 18, 2023
San Francisco, California
Filed July 25, 2023
Before: J. Clifford Wallace, Sidney R. Thomas, and M.
Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
2 KUCIEMBA V. VICTORY WOODWORKS, INC.
SUMMARY *
California Law/COVID-19/Negligence
The panel affirmed the district court’s dismissal of a
diversity action brought by Robert Kuciemba and his wife
Corby Kuciemba against Mr. Kuciemba’s employer Victory
Woodworks, alleging that Mrs. Kuciemba contracted a
severe case of COVID-19 from Mr. Kuciemba as a result of
Victory’s negligent failure to protect its employees from the
virus.
The panel certified two questions to the Supreme Court
of California, which accepted certification and held that (1)
California’s 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 employee’s workplace
injury—did not bar Mrs. Kuciemba’s tort claims against
Victory; but (2) an employer does not owe a duty of care
under California law to prevent the spread of COVID-19 to
employees’ household members. Because Victory owed no
duty of care to Mrs. Kuciemba, the panel affirmed the district
court’s order dismissing the complaint.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KUCIEMBA V. VICTORY WOODWORKS, INC. 3
COUNSEL
Martin Zurada (argued), Mark L. Venardi, and Mark T.
Freeman, Venardi Zurada LLP, Walnut Creek, California,
for Plaintiffs-Appellants.
William A. Bogdan (argued), Hinshaw & Culbertson LLP,
San Francisco, California, for Defendant-Appellee.
OPINION
McKEOWN, Circuit Judge:
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 company’s
actions “were a substantial factor in causing” Mrs.
Kuciemba’s 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 court’s definitive answer, we affirm the
district court’s dismissal.
4 KUCIEMBA V. VICTORY WOODWORKS, INC.
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. Kuciemba’s 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 Order’s directive, minimizing their exposure to
others and leaving home only for essential purposes. Their
only exposure to other people came from Mr. Kuciemba’s
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
The factual background is derived from the Kuciembas’ First
1
Amended Complaint.
KUCIEMBA V. VICTORY WOODWORKS, INC. 5
respiratory symptoms and was hospitalized, requiring a
respirator to breathe.
The Kuciembas sued Victory in Superior Court in
California. They alleged that Victory’s violations of federal,
state, and municipal regulations and its failure to protect its
employees from COVID-19 substantially caused Mrs.
Kuciemba’s 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
Victory’s motion, holding that California’s derivative injury
doctrine barred the Kuciembas’ claims and that an
employer’s duty to provide a safe workplace to employees
does not extend to nonemployees sickened by a virus outside
of the employer’s premises.
II. ANALYSIS
Following briefing and argument, we concluded that no
controlling precedent resolved whether the derivative injury
doctrine barred Mrs. Kuciemba’s 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 employer’s 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
California’s derivative injury doctrine bar the
spouse’s claim against the employer?
6 KUCIEMBA V. VICTORY WOODWORKS, INC.
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 California’s 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 employee’s
workplace injury”—does not bar Mrs. Kuciemba’s tort
claims. Kuciemba v. Victory Woodworks, Inc., No.
S274191, 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 one’s disability or death, rather than for the
plaintiff’s own [physical] injuries or death.” Id. at *6. Mrs.
Kuciemba’s negligence claims, however, “are not legally or
logically dependent” on an injury Mr. Kuciemba sustained
at work. Id. at *9. The “‘but for’ causal link” between Mrs.
Kuciemba’s injury and Mr. Kuciemba’s 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. 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
KUCIEMBA V. VICTORY WOODWORKS, INC. 7
plaintiffs have alleged that the defendant, through its own
actions, created an unreasonable risk of the disease’s
transmission.” Id. at *12.
Although California “Civil Code section 1714 articulates
a general duty of care,” compelling policy considerations
can support exceptions. Id. at *13. The court pointed to
Rowland v. Christian, 443 P.2d 561 (1968), as identifying
“several considerations that may, on balance, justify a
departure from Civil Code section 1714’s default rule of
duty.” Id. Such considerations include, among others, the
foreseeability of harm to the plaintiff, the moral blame
attached to the defendant’s 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. at *14 (quoting Kesner v. Superior Court, 384 P.3d
283, 291 (Cal. 2016)). On this point, the court concluded
that “it is plainly foreseeable that an employee who is
exposed to the virus through his employer’s negligence will
pass the virus to a household member.” Id. 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. 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
8 KUCIEMBA V. VICTORY WOODWORKS, INC.
a duty.” Id. 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 employee’s
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.
at *19. As a consequence, because Victory owed no duty to
Mrs. Kuciemba, we affirm the district court’s dismissal of
the Kuciembas’ First Amended Complaint.
AFFIRMED.