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New Jersey Extends Duty of Care Owed by Employer to Cohabitant of Employee for Exposure to Toxic Substance

By on July 21, 2016 in Coverage, Duty of Care, Liability with 0 Comments

The New Jersey Supreme Court previously recognized that an employer, as a landowner, could be liable for injuries from an asbestos exposure suffered by the wife of a worker who laundered her husband’s soiled, asbestos exposed work clothes. (Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006)). In the recent case of Schwartz v. Accuratus Corp., 2016 N.J. LEXIS 691 (July 6, 2016) the Supreme Court was asked to decide whether this legal duty could extend beyond the spouse to a cohabitant of the household of the employee. The Supreme Court decided that, in proper circumstances, such a duty of care may extend beyond a spouse of a worker exposed to a toxin that is the basis for a take-home toxic tort theory of liability.

Plaintiff Brenda Schwartz (“Brenda”) was diagnosed with chronic beryllium disease. She filed suit in Pennsylvania state court (she was a Pennsylvania resident), asserting claims for negligence, products liability, and strict liability. She sued Accuratus Ceramic Corp., a ceramics facility, located in Washington, New Jersey. Employees of Accuratus were allegedly exposed to manufacturing processes that included the production, casting, cutting, grinding, and cleaning of beryllium oxide ceramics and other materials containing beryllium.

Brenda dated her now husband Paul Schwartz (“Paul”) while he worked as a machinist for Accuratus. At that time, her husband roomed with another Accuratus co-worker, Gregory Altemose (“Gregory”). Brenda frequently stayed over at Paul’s apartment before they married. After they married, they resided in the apartment where Gregory also continued to live for several years. Paul had changed jobs before they were married to become employed by Matterson Brush, but Gregory continued to work for Accuratus.

Brenda performed laundry and other chores at the apartment, both before and after she married Paul. She laundered Paul’s clothes and towels, as well as towels used by Gregory. She also cleaned her and Paul’s part of the apartment and common areas.

Plaintiff alleged that exposure to beryllium may result in cancer and other disease of the lungs and skin. Further, that beryllium dust produced by the manufacturing facility can spread throughout the facility, is deposited on the clothing and shoes of workers, and then is transported into employees’ automobiles and homes. Further, plaintiff maintained that once a home environment is contaminated with beryllium, ordinary household chores, such as vacuuming and dusting, can re-suspend beryllium particles, causing persons in the home to be repeatedly exposed to beryllium.

Plaintiff claims that she was exposed to take-home beryllium exposure due to Paul and Gregory bringing the substance home from Accuratus on their unprotected work clothing. The plaintiff’s take-home theory of liability is based in part on her exposure to beryllium for the period that she frequently stayed over the apartment prior to the marriage. Also, it pertains to Accuratus encompassing the time period after the marriage, premised on the theory that Gregory continued to bring the substance home to the shared apartment from his work at the facility.

This case originated in Pennsylvania state court but was then removed to federal court (Eastern District of Pennsylvania). There was a dispute as to whether New Jersey or Pennsylvania law applied but the trial court found it did not matter because neither state recognized a duty of an employer to protect a worker’s non-spouse roommate from take-home exposure to a toxic substance. The court relied on Olivo as support for this proposition that New Jersey law would not recognize a duty to another employee’s non-spouse visitor co-habitant. Ultimately, a motion to dismiss was filed by the defendant employer and the District Court concluded that Brenda was not owed a duty of care by Accuratus and dismissed the case.

This case was appealed to the Third Circuit Court of Appeals. The Third Circuit filed a Petition for Certification of a Question of State Law to the New Jersey Supreme Court, which the Court accepted. The Supreme Court was asked the question whether Olivo may extend beyond providing a duty of care to the spouse of a person who was exposed to toxic substances while on the landowner’s premises.

In considering this issue, the Court discussed the basis of the Olivo decision. Olivo involved a claim by a pipe welder’s wife who died of mesothelioma. The suit alleged that the employees were frequently in contact with asbestos containing materials. At the end of each workday, the employee (husband) would return home in his work clothes and leave his clothes in the home’s basement laundry area for his wife to launder his clothes on a daily basis. A duty was found to exist based on the foreseeability of regular and close contact with the contaminated materials over an extended period of time. It was foreseeable that the wife would handle and launder her husband’s soiled and contaminated clothes, which the employer permitted the employee to take home.

In applying Olivo, the Supreme Court held the duty of care for take-home toxic tort liability was not defined on the basis of the plaintiff being the spouse of the employee. Rather, it was based on the foreseeability that the wife would be handling and laundering the soiled asbestos clothes, which the employer failed to protect against and allowed to be taken home. It was the reasonably predictable, regular and close contact with the dangerous toxin which produced the conclusion that the employer in Olivo could be held liable to the plaintiff for her injuries. The Court concluded that it was fair to impose such a duty.

The Supreme Court noted that the common law case law has evolved and requires flexibility to grow and change when appropriate to accommodate new expectations and ideas. It pointed out that the Olivo case does not state that a duty of care for take-home toxic tort liability cannot extend beyond a spouse.

In a certified question of law, the Supreme Court stated that it was not prepared to define the contours of the duty owed to others in a take-home toxic tort action. An analysis for the particularized risk, foreseeability, and fairness requires a case by case assessment. The court would need to consider the relationship of the parties and the relationship between the defendant and the injured person to determine whether it should be foreseeable, predictable and just to find that the defendant owed a duty of care to that inured person. Other factors must be taken into consideration such as the opportunity for exposure to the dangerous substance and the nature of the exposure that causes the risk of injury and also the employer’s knowledge of the dangerousness of exposure.

The Supreme Court refused to enunciate a bright line test of who is “in” and who is “out” in a negligence based take-home tort cause of action. But, it did clarify that the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. An assessment would need to take into account, weighing of the factors identified by the court to determine whether foreseeability, fairness, and predictability concerns should lead to the conclusion that a duty of care should be recognized under common law.

This Schwartz case is just another example of the continuing trend of the New Jersey courts to extend a duty of care in a premises liability claim based upon a nontraditional analysis. This trend is not favorable to defendants who are faced with defending novel type of claims that assert a breach of duty not previously recognized by the courts. Defendants should be prepared to defend on the basis of a foreseeability analysis and explain to the court why fairness does not support the imposition of a duty of care upon them.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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