Over a decade ago, I wrote an article titled Off-Premises Defense Washed Up?, which appeared in the May 30, 2005 issue of the National Underwriter Property & Casualty Magazine. The article involved two appellate court decisions, one issued by a New York court and the other one issued by a New Jersey court, in which the courts recognized a claim for what has been referred to as take-home toxic-tort liability. Specifically, the courts allowed the assertion of second-hand asbestos claims by the spouses of employees who had been exposed to asbestos while at work. The spouses, who developed mesothelioma, claimed that they were exposed to asbestos fibers while washing their husbands’ work clothes.
The New York decision was later reversed by the New York Court of Appeals, New York’s highest court. See In re New York City Asbestos Litigation, 840 N.E.2d 115 (2005). The court found that an employer/landowner did not owe a duty to protect an employee’s spouse from exposure to hazardous substances. The New Jersey decision, in contrast, was affirmed by the New Jersey Supreme Court. See Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006). In that case, the Court held that an employer/landowner could be held liable for injuries sustained by the wife of an employee as a result of exposure to a hazardous substance through contact with her husband’s work clothes.
Ten years later, the New Jersey Supreme Court revisited take-home toxic-tort liability in Schwartz v. Accuratus Corp., 2016 WL 3606026 (July 6, 2016). The plaintiffs in that case, Brenda Ann and Paul Schwartz, claimed that Brenda was exposed to beryllium that her boyfriend, and later husband, brought home from work on his clothing. Paul worked for Accuratus Corporation, a ceramics manufacturer located in New Jersey, prior to and after marrying Brenda. Another employee of Accuratus shared an apartment with the Schwartzes for some time. Thus, she also was exposed to beryllium that he brought home on his clothing.
The action, which was originally filed in Pennsylvania state court, was removed by the defendants to federal court. The trial court granted Accuratus’s motion to dismiss the complaint, concluding that Accuratus did not owe Brenda a duty of care. That decision was later appealed to the United States Court of Appeals for the Third Circuit. Recognizing the significance of the issue, which was to be determined under New Jersey law, the Third Circuit certified the following question to the New Jersey Supreme Court:
Does the premises liability rule set forth in Olivo extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises, and, if so, what are the limits on that liability rule and the associated scope of duty?
Id. at *1. In answer to that question, the Court stated “that the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse.” Id. at *8.
The Court declined to precisely define the extent of the duty of care or adopt a bright-line rule. The Court noted:
Although chance contact with a worker transporting home a toxic substance from another’s premises should not suffice to create a duty of care . . . we cannot create an abstract bright-line rule at this time as to “who’s in and who’s out” on a negligence-based take-home toxic-tort cause of action based on Olivo or any previous decision. The contours of the issue defy definition in such manner.
Id. at *7 (citation omitted).
As the Court observed, when expanding tort liability, it is important to make sure that the imposition of liability is not only foreseeable, but also that it is fair, just, and predictable under the circumstances. Id. at *3, 8. The Court identified several factors that must be weighed in order to make this determination: (1) the relationship among the parties; (2) the opportunity for exposure to the dangerous substance and the nature of the exposure that causes the risk of injury; and (3) the employer’s knowledge of the danger of exposure to the substance at the time it occurred. The determination as to whether liability exists in a particular case will necessitate an assessment and weighing of those factors.
In Olivo, the Court extended the duty of care owed by a landowner/employer to the spouse of an employee who is injured as a result of a dangerous condition in the workplace. In Schwartz, the court went a step further. As the Court observed, “[t]ort law is built on case-by-case development based on the facts presented by individual cases.” Id. at *5. Based on the Court’s decision in Schwartz, it is now clear that recovery based on a take-home toxic-tort liability theory is no longer limited to the spouse of an employee. Nor is it limited to a claim involving exposure to asbestos. Just how far that theory extends, or the types of “toxic substances” that will give rise to such a claim, however, is not clear.