New Jersey Supreme Court Expands Scope of Liability for “Take-home” Torts

By: Ryan D. Lang, Esq.

The New Jersey Supreme Court’s recent unanimous decision in Schwartz v. Accuratus Corp.expanded the scope of “take-home” tort liability, potentially exposing employers and premises owners to a large number of lawsuits.  “Take-home” tort liability is where employers or premises owners are held liable for an employee or visitor being exposed to alleged toxins (such as asbestos or pesticides), then bringing the toxins home, exposing additional persons.  In Schwartz, the plaintiffs, Brenda Ann and Paul Schwartz, alleged that Ms. Schwartz was exposed to asbestos fibers which her boyfriend, and eventual husband, Mr. Schwartz, brought home in his work clothes.  Mr. Schwartz was employed by Accuratus Corporation, which manufactures ceramics in New Jersey.  Moreover, another employee of Accuratus also shared an apartment with Mr. Schwartz for a period of time.  While Ms. Schwartz did not live in the apartment, she frequently visited the apartment, and often laundered her boyfriend’s contaminated clothing and cleaned the apartment.  Therefore, Ms. Schwartz was exposed to the asbestos fibers brought home from both Mr. Schwartz and his roommate.  Due to her exposure to the asbestos fibers, Ms. Schwartz eventually contracted chronic beryllium disease, an untreatable disease affecting lung tissue, and filed suit against the defendants. 

Plaintiff’s lawsuit was originally filed in Pennsylvania state court, and was then removed by the defendants to federal court.  Defendant Accuratus’s motion to dismiss the complaint was granted by the trial court, which held that Accuratus did not owe a duty of care to Ms. Schwartz.  In turn, the plaintiffs appealed the matter to the United States Court of Appeals for the Third Circuit.  The question certified to the New Jersey Supreme Court by the Court of Appeals for the Third Circuit was: “[d]oes 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.” 

The New Jersey Supreme Court answered the question posed by the United States Court of Appeals for the Third Circuit in the affirmative.  In reaching its decision, the New Jersey Supreme Court looked to the Court’s ruling in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006), where the Court imposed liability upon the defendant not mainly because plaintiff’s wife “was married to a worker a 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.”   While the New Jersey Supreme 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,” the Court held that the duty owed to others in a take-home toxic-tort action “may extend, in appropriate circumstances, to a plaintiff who is not a spouse.”  The Court reasoned that it is not put forth anywhere in Olivo “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.”  As such, the Supreme Court in Schwartz established that there is no bright-line rules such as familial relationships, residence, or marital status for “take-home” toxic tort liability, but rather, it must be determined on a case to case basis whether the exposure was foreseeable based upon the facts of the matter. 

The New Jersey Supreme Court’s decision in Schwartz thus strengthens the right of members of households, as well as potential guests, to file “take-home” tort liability claims.  In light in this expansion in the scope of liability for “take-home” liability cases, employers and premises owners must assess their potential exposure pertaining to their coverage policies for general liability, premises liability, and pollution liability coverage.