Schwartz v. Accuratus Corp., 225 N.J. 517 (2016). A “take-home toxic tort” is very different than a take-home final examination or take-out foods. It refers to a cause of action that arises when an employee works with toxic materials and then brings his (often, but not necessarily always, “his”) clothes home, where someone he lives with his then exposed to and allegedly damaged by the toxic materials. Today, answering a question certified by the Third Circuit, a relatively rare procedure, the Supreme Court addressed whether take-home toxic tort claims may be brought by someone other than the employee’s spouse. In an opinion by Justice LaVecchia, the Court held that the cause of action was not limited to a spouse.
In the late 1970’s, plaintiff Paul Schwartz shared an apartment in Pennsylvania with Gregory Altemose. Both Schwartz and Altemose worked for defendant in New Jersey, where employees were allegedly exposed to airborne beryllium particles. Plaintiff Brenda Schwartz was then dating, and later married, Paul Schwartz. Even before they were married, Brenda would often visit the Schwartz/Altemose apartment and stay overnight. After the marriage, the Schwartzes and Altemose continued to share the apartment for a period of time. Brenda would launder her husband’s clothing and towels, as well as towels used by Altemose. She would also clean parts of the apartment.
Brenda was later diagnosed with chronic beryllium disease,”an irreversible and largely untreatable disease affecting lung tissue that is caused by exposure to airborne beryllium particles.” She and her husband sued defendant on a take-home toxic tort theory that was “based in part on Brenda’s exposure to beryllium for the period that she frequently stayed over at the apartment prior to her marriage. Additionally, the take-home-toxin theory as it pertains to defendant Accuratus encompasses the time period after Brenda and Paul’s marriage, premised on the theory that Altemose continued to bring the substance home to the shared apartment from his work at the Accuratus facility” (Paul had meanwhile begun to work for a co-defendant who was not involved in today’s opinion).
Plaintiffs sued in state court in Pennsylvania, but the case was removed to federal court. After some other motion practice, defendant moved to dismiss on the ground that New Jersey law did not permit a take-home toxic tort claim to be brought by someone other than a spouse of an employee who brought home toxic materials. The District Court agreed, citing Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006). That case had involved a claim by a spouse of an employee who had handled the employee’s unprotected, contaminated work clothing.
Plaintiffs appealed to the Third Circuit, which certified the following question to the 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?” The Supreme Court agreed to answer the question and, today, did so, in the affirmative.
Justice LaVecchia discussed Olivo in great detail and noted that the Court had cautioned that “[t]he duty we recognize in these circumstances is focused on the particularized foreseeability of harm to plaintiff’s wife.” But she said “that concise statement cannot be taken out of its context– a duty was found to exist in Olivo based on the foreseeability of regular and close contact with the contaminated material (the dangerous condition) over an extended period of time.” The Court’s reasoning in Olivo was not so much that the plaintiff wife “was married to a worker at Exxon who brought asbestos-contaminated clothing home from work but that it was foreseeable that she would be handling and laundering the soiled, asbestos-exposed clothes, which Exxon failed to protect at work and allowed to be taken home by workers.”
The common law, Justice LaVecchia said, citing prior cases, evolves case by case “to accommodate changes in society.” Olivo did not state, “explicitly or implicitly, that a duty of care for take-home toxic-tort liability cannot extend beyond a spouse. Nor does it base liability on some definition of ‘household’ member, or even on the basis of biological or familial relationships.”
The Court declined to “define the contours of the duty owed to others in a take-home toxic-tort action through a certified question of law.” Instead, Justice LaVecchia said only that the duty “may extend, in appropriate circumstances, to a plaintiff who is not a spouse,” and she listed some factors for determining, in a particular case, whether a plaintiff could claim the benefit of the duty. Those factors included the relationship of the parties, foreseeability, the employer’s knowledge of the dangerousness of exposure at that time it took place (not later, when knowledge might be different), fairness to the parties, and predictability of the result. Justice LaVecchia also noted some cases from other jurisdictions in this area, one of which extended the duty to protect the daughter of a worker.
This decision thus extends protection beyond spouses, but leaves it to further common law development to determine how far that protection will extend. But the Third Circuit got its question answered, and a reversal in this case appears to be in the cards.