Back in 2006, the New Jersey Supreme Court held in Olivo v. Owens-Illinois, 186 N.J. 394, 895 A.2d 1143 (2006), that, in proper circumstances, a landowner owed a duty of care to the spouse of an asbestos worker for asbestos-related injuries allegedly sustained by the spouse as a result of his or her exposure to asbestos brought home on the worker’s clothing, such that the landowner could be liable to the spouse in premises liability, which is a claim sounding in negligence. Now, ten years later, in Schwartz v. Accuratus Corp., 2016 WL 3606026 (N.J. July 6, 2016), a unanimous New Jersey Supreme Court opened the door to the extension of that duty of care to an individual other than a spouse for injuries allegedly sustained by the individual as a result of his or her exposure to a toxin other than asbestos (in this case, beryllium) brought home by a worker on his or her clothes. The Court reached this conclusion in the context of answering a question certified to it by the United States Court of Appeals for the Third Circuit, which was considering an appeal from the United States District Court for the Eastern District of Pennsylvania.
The Schwartz Court did not attempt to identify the types of toxins to which the take-home exposure rule should apply, nor did it attempt to ascertain the class of individuals to whom a duty of care should extend. The Court explained that Olivo did not “base liability on some definition of ‘household’ member, or even on the basis of biological or familial relationships.” Schwartz, id. at *6. But, on the other hand, it recognized that “no precedent from another jurisdiction, in a non-strict liability setting, has found a duty in a take-home toxic-tort cause of action outside of a factual setting involving household members, presumably because of the idiosyncratic nature of most other interactions with a take-home toxin.” Id. It concluded that the parameters of the rule should develop on a case-by-case basis initially requiring an evaluation of the “foreseeability of risk to an injured person,” and once foreseeability is established, a determination as to whether the “recognition of a duty accords with fairness, justness and predictability.” Id. at *3.
Neither in Olivo nor in Schwartz did the New Jersey Supreme Court address the issue of whether the take-home exposure rule or any extension thereof should apply to claims asserted against product manufacturers and sellers. In James v. Bessemer Processing Co., Inc., 155 N.J. 279, 714 A.2d 898 (1998), a toxic exposure case involving product liability claims sounding in strict liability and negligence, the Court noted that a duty of care is owed to a “‘reasonably foreseeable user,'” but did not mention non-users. Id. at 296, 714 A.2d at 907. Citing decisions of New Jersey trial courts, the Appellate Division of the New Jersey Superior Court explained in its ruling in Olivo that “[i]n New Jersey, manufacturers of hazardous products owe a duty of care to both users or consumers and third parties,” including to the “foreseeable plaintiff.” Olivo v. Exxon Mobil Corp., 377 N.J. Super. 286, 294, 872 A.2d 814, 819 (N. Super. Ct. App. Div. 2005). It would be a small step for the New Jersey Supreme Court to explicitly apply its holding in Schwartz – that, in proper circumstances in a toxic tort case, the take-home exposure rule may extend to an individual other than a spouse – to product manufacturers and sellers.