In a case that may help reshape the contours of so-called “take-home” toxic tort liability, New Jersey’s Supreme Court held that a company’s liability for toxic substances brought home on a worker’s clothing can extend beyond the spouse of the worker. Schwartz v. Accuratus Corp., No. A-73-14-076195 (N.J. July 6, 2016).

Plaintiffs Brenda Ann and Paul Schwartz filed suit against Accuratus Ceramic Corporation alleging negligence, products liability and strict liability after Brenda was diagnosed with chronic beryllium disease. Paul had worked at the defendant’s ceramics facility in 1978 and 1979. By 1979, Paul and Brenda were dating and Brenda often visited and stayed overnight at Paul’s apartment, which he shared with a co-worker. Brenda did the laundry and other chores at the apartment, both before and after she and Paul were married in June 1980.

Plaintiffs filed their complaint in Pennsylvania state court claiming that Brenda was subjected to take-home beryllium exposure due to Paul and his roommate bringing the substance home from the facility on their work clothing, including during the time before she and Paul were married. The case was removed to the United States District Court for the Eastern District of Pennsylvania, which found that New Jersey has not recognized a duty for an employer to protect a worker’s non-spouse roommate from take-home exposure to a toxic substance. Plaintiffs appealed to the United States Court of Appeals for the Third Circuit, which submitted a petition to the New Jersey Supreme Court, asking that court to better define the extent of potential “take-home” liability under New Jersey law.

In considering the question of law certified by the Third Circuit, New Jersey’s Supreme Court held that the duty of care may extend, under certain circumstances, to a plaintiff who is not a spouse, but the court declined to create a bright-line rule “as to who’s in and who’s out.” The court explained that the duty was based on the foreseeability of regular and close contact with the contaminated material and not exclusively on whether the injured person was a spouse or family member.

The court set forth the following factors to be considered in take-home toxic tort actions: (1) the relationship of the parties, including not only that between the defendant’s employee and the injured person, but also that between the defendant and the injured person; (2) the opportunity for exposure to the toxin and the nature of the exposure that causes the risk of injury; and (3) the employer’s knowledge of the danger associated with exposure when the exposure occurred and not at a later time when more information may become available.