Snyder v. Michael''s Stores Inc.9/23/1996
California Court of Appeals
No. F024076
49 Cal.App.4th 709, 57 Cal.Rptr.2d 105, 1996.ca.1
September 23, 1996
MIKALA M. SNYDER, A MINOR, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
MICHAEL'S STORES, INC., ET AL., DEFENDANTS AND RESPONDENTS.
Appeal from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. 312598. Hon. John G. Whiteside, Judge.
Review Granted December 23, 1996,
Miller, Brodsky & Baskin, Inc., Eugene A. Brodsky, Brendan P. Brewer, Fancher & Wickland and Paige Leslie Wickland for Plaintiffs and Appellants.
Crabtree, Schmidt, Zeff, Jacobs & Farrar, Thomas D. Zeff and E. Daniel Farrar for Defendants and Respondents.
Vartabedian, J.; Stone (w.a.), Acting P.j., and Thaxter, J., Concurring.
The opinion of the court was delivered by: Vartabedian
VARTABEDIAN, J.:
Are in utero injuries to the child of an employee, when caused by negligence of the mother's employer, remediable, if at all, only through the workers' compensation system? Bell v. Macy's California (1989) 212 Cal. App. 3d 1442, 261 Cal. Rptr. 447 (Bell) answered yes, concluding a cause of action for such negligence is barred by the "exclusive remedy" provisions of Labor Code sections 3600 and 3602. ( Id. at p. 1453.) Commenting it was legally bound to follow Bell, the trial court in the present case sustained respondents' demurrer to appellants' tort action and ordered the matter dismissed as to respondents. This appeal follows. We conclude Bell was wrongly decided; contrary to Bell, we determine an in utero injury inflicted upon a child by the mother's employer is actionable in tort to the same extent as any nonemployee's direct injury by the employer.
FACTS AND PROCEDURAL HISTORY
Appellant Naomi Snyder (Naomi) was employed by respondent Michael's Stores, Inc., during part of 1993 in its Modesto retail store. Respondent Dennis Cusimano was the manager of the store. Throughout her employment, Naomi was pregnant with appellant Mikayla Snyder (Mikayla), born in January of 1994.
During the time of Naomi's employment, respondents permitted a buffing machine, powered by propane gas, to be used in the store without adequate ventilation and monitoring. Respondents "had been informed, received complaints from employees of MICHAELS, knew, or should have known" that a toxic level of carbon monoxide gas was accumulating in the store during the use of the buffer.
In the afternoon of October 2, 1993, such a buildup of carbon monoxide gas occurred, causing 21 customers and employees to fall ill and be conveyed to hospitals. Naomi was among those made ill. Naomi was diagnosed as suffering from carbon monoxide poisoning. On this and other occasions when Naomi worked for respondent Michael's, Mikayla -- in utero -- was "exposed to toxic levels of carbon monoxide. Carbon monoxide binds to hemoglobin and reduces the capacity of blood to transport oxygen, and poisons a variety of intracellular mechanisms for the transport of oxygen further impairing cellular respiration. The deprivation of adequate oxygen to [Mikayla] legally caused permanent damage to her brain and other parts of the nervous system and body." As a result, Mikayla suffers from cerebral palsy, seizure disorder, abnormal motor function and other conditions.
Appellants filed their complaint in September 1994. They filed a seco
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