New Jersey’s High Court Opens Door for Toxic Tort Liability to Individuals Other Than Spouses in Take-Home Exposure Cases

In a recent decision, the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse of an exposed person of a toxic substance on the landowner’s property. In its ruling, the court would not set a limitation as to how far the duty could extend, but stressed each case would have to be determined on its own facts.

In the case, the plaintiffs, Paul and Brenda Ann Schwartz, claimed that Mr. Schwartz was exposed to beryllium that he brought home causing exposure to Mrs. Schwartz while they were dating and before they were married and living together. Mrs. Schwartz subsequently developed chronic beryllium disease. The case was brought in Pennsylvania state court, but was subsequently removed by the defendants to federal court. The parties disputed whether Pennsylvania or New Jersey law applied, and the court stated that the disputed law did not matter as “neither state has recognized a duty of an employer to protect a worker’s non-spouse…roommate from take-home exposure to a toxic substance”(citation omitted). In dismissing the case, the federal court looked to the New Jersey case of Olivo v. Ownes-Illinois, Inc. 186 N.J.394, 895 A.2d 1143 (2006). In Olivo, a duty was found to be owed to a spouse of an individual who was exposed to and brought home asbestos on his work clothing. The federal court in deciding to dismiss the Schwartzs’ case stated that to interpret Olivo as supporting a duty to Mrs. Schwartz prior to marriage would “stretch the New Jersey Supreme Court’s decision beyond its tensile strength” (citations omitted). The plaintiffs appealed to the Third Circuit, which sent a petition for Certification of a Question of State Law to the New Jersey Supreme Court.

In ruling on the question of state law, the New Jersey Supreme Court looked at Olivo and stated that that case did not limit take-home exposure beyond a spouse. However, the court went on to state “we cannot define the contours of the duty owed to others in a take-home toxic-tort action through a certified question of law. While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings” (citations omitted). In conclusion, the court held: “Our response to the question asked by the Third Circuit will have to be limited to clarifying that the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. We further instruct that the assessment should take into account a weighing of the factors identified herein to determine whether the foreseeability, fairness, and predictability concerns of Hopkins should lead to the conclusion that a duty of care should be recognized under common law.”

The Supreme Court’s ruling has opened the door for liability of non-spouses in take-home exposure cases, but how far has not been determined and will be decided going forward on a case-by-case basis. The main issue will be foreseeability, which will be determined by such factors as frequency of contact the injured party had with the exposed clothing and time the injured party spent in the exposed home. It is by no means a stretch of the imagination to conclude that liability will include anyone, whether family or friend, living in the home while the exposed individual is bringing home the contaminated work clothes. Where the gray area will be is how far the liability will stretch to nonresidents of the home. Will landowners owe a duty to the neighbor that stops by for coffee once a week or to one of the children’s friends that has the occasional sleepover? One thing is clear, however, that plaintiffs will push the limits of this ruling to include as many visitors as possible.

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