On July 6, 2016, the New Jersey Supreme Court issued a unanimous opinion holding that, in certain cases, the duty of care in take-home exposure cases could be expanded to plaintiffs beyond spouses of employees working with toxins in Schwartz v. Accartus Corporation. The Court found that an employer’s scope of duty of care in such cases requires a fact specific analysis, including assessing the risk and foreseeability of injury. The Court did not definitively decide whether the Schwartz plaintiff was owed a duty of care. Instead, the Court provided that judges must weigh numerous factors including foreseeability, fairness, and predictability in making a duty of care determination.
Brenda Schwartz was the girlfriend (and eventual wife) of Paul Swartz. While she and Paul were dating, Paul worked at Defendant Accaratus Ceramic Corporation, and brought home clothes that were allegedly tainted with beryllium. At the same time, Paul had a roommate who also worked for Accaratus and brought home take-home toxins on his clothes. Brenda took care of various household chores when she visited, including laundry. Brenda and Paul brought suit after Brenda was diagnosed with chronic beryllium disease, alleging take-home toxins were the cause of her disease.
The Legal Precedent
The New Jersey Supreme Court looked to Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (2006) for guidance on this issue. Olivo reasoned that determining the duty of care in take-home exposure cases “devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.” Id. at 1148. Ultimately, the Olivo court found that there was a duty owed to the spouse who was allegedly injured from nearly forty years of “handling the workers’ unprotected work clothing[,] based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing.” Id. at 1149. However, the ruling stopped there; there was no further analysis regarding how far the scope of duty could extend in take-home toxic tort cases. The court’s analysis was specific to the facts of the case, and did not create a bright-line test for analyzing take-home claims in other cases.
The New Jersey Supreme Courts’ Decision
The Schwartz court stressed that a case-by-case analysis is necessary when analyzing duty to a take-home plaintiff. The Court stated that the first step is determining the foreseeability of the risk of injury. In making a foreseeability analysis, the Court drew on the Olivo court’s reasoning, defining the risk of injury as “the risk reasonably within the range of apprehension.” Schwartz, at 9.
Once foreseeability is established, the next step is to determine whether the recognition of duty comports with fairness, justice, and predictability. Specifically, the Schwartz court identified certain factors to consider in such an analysis: (1) the relationship of the parties (i.e. the plaintiff and the defendant); (2) the nature of the risk, including the danger of the toxin and how it causes injury within the body (“the greater the danger, the greater the duty”); (3) the opportunity and ability to exercise care; and (4) the public interest in the proposed solution. In balancing such factors, the Court also stressed the importance of an employer’s knowledge of the danger of the toxin. Id. at 9-10.
Ultimately, the Court decided that the duty of care assessment requires more than an examination of the plaintiff’s familial relationships, noting that Olivo in no way limits the scope of duty to just spouses or family members. Instead, courts must examine such cases based on their facts. The Court emphasized that duty of care will not be determined with a rigid, bright-line rule. Instead, flexibility and in-depth analysis is needed: “The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.” Id. at 16 (quoting Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110 (1993)).
The Schwartz ruling did not establish a bright line delineating the scope of defendants’ duty of care, but it shows New Jersey law may consider expanding it, and has the potential to influence the rulings in similar cases in other jurisdictions.