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Law360 (April 13, 2021, 10:14 PM EDT ) See's Candies can't toss a worker's suit claiming she contracted COVID-19 on the job due to lax safety standards and infected her husband, who later died of complications from the virus, a California judge ruled Tuesday, saying the worker's remedy is not limited to workers' compensation.
During a remote hearing, Superior Court Judge Daniel M. Crowley overruled See's Candies' demurrer, finding the complaint filed by Matilde Ek and her three daughters is not about the illness she suffered after contracting the virus but over her husband's death allegedly because he was exposed to the virus that she brought home from work at the candy maker's facility in Carson, California.
See's Candies argued that Arturo Ek's illness and death arose directly from his wife's workplace illness, meaning his family can only pursue a remedy under the Worker's Compensation Act and can't bring claims of negligence and premises liability. Arturo Ek's injury would not have existed were it not for his wife's workplace injury, See's attorney Joseph D. Lee of Munger Tolles & Olson LLP asserted at the hearing.
Judge Crowley interjected to say he didn't believe the complaint alleges Arturo Ek got sick because his wife got sick. Rather, the judge said, the suit alleges the husband got sick because Matilde Ek brought the virus home from work.
But Lee said that even if Matilde Ek had not experienced symptoms of COVID-19 but passed the virus to her husband, it would still be a workplace injury under the worker's compensation statute because she allegedly contracted the virus at work. The complaint alleges Matilde Ek got sick at work, stayed home, and then transmitted the virus to her husband and one daughter.
"That's not mere vectoring without workplace injury," Lee said. "There is workplace injury and it's the way Mr. Ek allegedly got sick. [His] injury would not have existed had there not been a workplace injury."
The Eks' attorney Donna Silver of Krissman & Silver LLP, however, said Arturo Ek's death is not derivative of his wife's workplace injury.
"Mrs. Ek was a vector linking See's negligence to Mr. Ek's death," Silver said. "This suit isn't about her illness."
Judge Crowley agreed with the Eks' argument and overruled See's Candies' demurrer.
Representatives for the parties did not immediately respond to requests for comment Tuesday evening.
Matilde Ek and her daughters in January sued See's Candies, alleging the company failed to operate and conduct business as "should be expected to protect their employees, including plaintiff, from the known high risk of this viral infection by failing to put known, appropriate and necessary safety mitigation measures in place."
Ek said she worked on the packing line in close proximity to other employees and without proper safety measures when the COVID-19 outbreak began around the country last year. Between March 1 and March 19, 2020, Ek worked without proper social distancing on the packing line and while using the restrooms and break rooms in close proximity to other workers, she said. Some workers were coughing, sneezing and showing other signs of COVID-19 infections, according to Ek.
See's Candies "knew and should have known that their failure to take appropriate and necessary safety mitigation measures would increase the known and foreseeable risk that their workers, like plaintiff, would become infected in the course and scope of their work for defendants, and carry said viral infection home infecting one or more of their family members," Ek said.
After becoming infected, Ek stayed home from work, and as a result her 72-year-old husband and her daughter also caught the virus, according to the suit. Her husband died April 20.
Ek and her daughters are represented by Joel Krissman and Donna Silver of Krissman & Silver LLP.
See's Candies is represented by Malcolm A. Heinicke and Joseph D. Lee of Munger Tolles & Olson LLP.
The case is Matilde Ek et al. v. See's Candies Inc. et al., case number 20STCV49673, in the Superior Court of the State of California, County of Los Angeles.
--Additional reporting by Craig Clough. Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
