Schwartz v. Accuratus Corp. — New Jersey Supreme Court Extends Take-Home Toxic Tort Liability

By: Cohen, Placitella & Roth @ Aug 08, 2016

By: Jared Placitella

In Schwartz v. Accuratus, No. 076195, 2016 N.J. LEXIS 691 (N.J. July 6, 2016), the federal Court of Appeals for 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 and the associated scope of duty?

In Olivo v. Owens Illinois, 186 N.J. 394 (2006), the New Jersey Supreme Court held that a wife who had laundered her husband’s asbestos-laden work clothes could seek compensation for her asbestos-related disease “based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing.” Id. at 404–05. The issues presented in Schwartz therefore were essentially how far does that “foreseeable risk” of take-home exposures extend, and to whom.

In the spring of 1979, Paul Schwartz began sharing an apartment with Gregory Altemose, his co-worker at Accuratus Corporation, where the two were exposed to manufacturing processes that included the manipulation of beryllium oxide ceramics and other materials containing beryllium. Schwartz, 2016 N.J. LEXIS 691, at *10–12. At the time, Paul was dating his girlfriend, Brenda, who frequently visited and stayed overnight at the apartment with Paul. Id. After the couple married in 1980, Brenda and Paul resided in the apartment, where Gregory also continued to live. Id. Brenda laundered Paul’s clothes and towels used by both Paul and Gregory both before and after she married Paul. Id. She also cleaned her and Paul’s parts of the apartment, as well as the common areas. Id. As a result, the plaintiffs claimed, that Brenda was exposed to beryllium that Paul and Gregory brought home on their clothes and persons from work each day. Id. Brenda later contracted chronic beryllium disease and filed suit.

In finding that a duty of care was owed to Brenda, the Supreme Court revisited the rationale behind its decision in Olivo. There, the Court explained that “the duty . . . was expressly built on easily foreseen contact with the dangerous substances that could have been avoided by [the defendant’s] opportunity to take reasonable precautionary steps.” Id. at *19 (citing Olivo, 186 N.J. at 404). The Court continued, “[t]he danger from the toxin was known [in Olivo], and the steps to minimize the danger and avoid injury to a class of identifiable persons off-premises was viewed as not burdensome and in the public interest.” Id. (citing Olivo, 186 N.J. at 405).

In Schwartz, the Court recognized that this duty “was not defined on the basis of [Mrs. Olivo’s] role as the lawfully wedded spouse” but rather “that it was foreseeable that she would be handling and laundering the soiled, asbestos-exposed clothes, which [the defendant] failed to protect at work and allowed to be taken home by workers.” Id. at *22. The Court refused to limit the scope of the duty in a “take-home” exposure case to “some definition of ‘household’ member” (id. at *23–24 ), but rather is ascertained by the “foreseeability” of the exposure, which includes a consideration of the “relationship between the parties” — between both the defendant’s employee and the injured person, as well as, between the defendant itself and the injured person; the opportunity for, and the nature of, the toxic exposure; and the defendant’s knowledge of the dangerousness of exposure at the time. Id. at *26–27.

Based on these factors, the Court held that “the Olivo duty of care may, in proper circumstances, extend beyond a spouse of a worker exposed to the toxin that is the basis for a take-home toxic-tort theory of liability.” Id. at *27–28. Simply put, this is the most significant take-away from Schwartz. Take-home toxic tort liability is not necessarily limited to bright-line rules such as residence, marital status, or familial relationships, but rather by the exposure is foreseeable as presented by the factual circumstances in each case.