Action Item: Employers and premises owner of facilities in which employees or visitors might be exposed to alleged hazardous substances must be aware of a recent New Jersey Supreme Court decision in Schwartz v. Accuratus Corp., which strengthened the right of members of one’s household and, potentially, invited guests, to assert claims relating to “take-home exposure” from such toxins through contact with an “exposed” individual. This decision could lead to an uptick in lawsuits asserting such claims and potentially-impacted companies must evaluate their liability exposure and insurance coverage accordingly.

In an unfortunate extension of what has been seen in other jurisdictions, a recent unanimous ruling by the New Jersey Supreme Court in Schwartz v. Accuratus Corp., N.J. No. 076195, could open the door to a wave of lawsuits seeking to hold employers and others liable for members of an employee’s household, and perhaps even invited guests, that are indirectly exposed to an allegedly toxic substance through contact with the employee. This cause of action is referred to as a “take-home exposure” claim and often involves plaintiffs alleging exposure to a harmful substance through contact with persons who brought the substance home on their clothing, tools, or vehicles. Take-home exposure claims have become a central and controversial feature of modern asbestos dockets; and this decision certainly suggests that such liability might be extended beyond such commonplace mass tort arenas. While the viability of these claims has been the source of great debate in the judiciary, the New Jersey Supreme Court’s fulsome endorsement of this legal theory in the Schwartz decision may well encourage the pursuit and eventual adoption of similar causes of action and encourage an expansion of this claim into the non-asbestos arena.

The Schwartz Decision

The Schwartz case is a unique “take-home” case in that it did not involve a spouse or relative of the occupationally-exposed employee. Rather, plaintiff Brenda Schwartz contended she developed chronic beryllium disease—“an irreversible and largely untreatable disease affecting lung tissue”—as a result of exposure to asbestos fibers from the work clothes of her boyfriend (whom she later married) and her boyfriend’s roommate, both of whom worked at a local ceramics factory. Critically, during the period of the alleged exposure, Ms. Schwartz was not even living at the apartment where her boyfriend and his roommate resided but “frequently visited” and often laundered her boyfriend’s tainted clothing.

Originally filed in Pennsylvania state court, the case was removed to the United States District Court for the Eastern District of Pennsylvania where the judge applied New Jersey law. The federal district court concluded that New Jersey law “has [not] recognized a duty of an employer to protect a worker’s non-spouse … roommate from take-home exposure to a toxic substance.” The court pointed to the New Jersey Supreme Court’s 2006 decision Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) as support for that proposition. In the Olivo matter, the court held that an employer owed a duty of care to a worker’s spouse based on a foreseeable risk of exposure in that the spouse could be exposed to asbestos fibers through the employee’s clothing. The district court determined that to extend the duty of care beyond one’s spouse would stretch the Olivo holding “beyond its tensile strength.”

Plaintiffs appealed to the Third Circuit, which certified the following question to the New Jersey 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 New Jersey Supreme Court agreed to take up the question.

At that hearing, Defendants urged the New Jersey Supreme Court to create a bright-line rule limiting a take-home exposure claim to an employee’s spouse. The failure to do so, those defendants claimed, would create limitless liability for employers and could have catastrophic consequences for businesses nationwide.

Justice LaVecchia, writing for the Court, rejected this argument and declined to “create an abstract-bright line rule at this time as to “‘who’s in and who’s out’ on a negligence-based take home toxic-tort cause of action.” With regard to the scope of the Olivo decision, the Court stated only that the duty of care “may extend, in appropriate circumstances, to a plaintiff who is not a spouse,” and 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 the time it took place (not later, when knowledge might be different), fairness to the parties, and predictability of the result.

Following this ruling, the case will now go back to the Third Circuit where the court will decide if the trial court improperly dismissed the plaintiffs’ complaint. Armed with the New Jersey Supreme Court’s decision, plaintiffs are sure to argue that the trial court’s dismissal was in error.

Potential Impact

The Schwartz decision is likely to lead to an uptick in take-home liability cases filed, particularly in New Jersey. Employers and premises owner where employees or visitors are exposed to alleged toxins (e.g., asbestos, cigarette smoke, mildew fumes, formaldehyde vapors, pesticides) should keep a close eye on how courts interpret the Schwartz decision and evaluate their defense strategies accordingly. Likewise, companies should evaluate their potential exposure in the context of their premises liability, general liability, and pollution legal liability coverages.