Law Enacted to Phase-Out Use of Military Burn Pits

Recent legislation passed Congress and signed by the President last week mandates the  phase-out burn pits used by the United States military. The law provides for medical monitoring and health assessments of military members who have been exposed to toxic chemicals or airborne contaminants from burn pits. This legislation follows the dismissal, almost a year ago, of litigation against third-party contractors by service members, and their dependents, who became ill after alleged exposure to  the toxic fumes where burn pits were utilized in the Iraq and Afghanistan wars.

Toxic-Tort: NJ Supreme Court Holds That an Employer Has a Duty to a Household Contact

"We hold that the Olivo duty of care may, in proper circumstances, extend beyond a spouse of a worker exposed to the toxin that is the basis for a take-home toxic-tort theory of liability." Justice LaVecchia, NJ Supreme Court

An employer's duty to a employee's household contact was the focus of decision announced by the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the finance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.

The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.

"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:And the Court having determined to accept the question as certified."Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006), 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 of that liability rule and the associated scope of duty?

SYLLABUS 

(This syllabus is not part of the opinion of the Court.  It has been prepared by the Office of the Clerk for the convenience of the reader.  It has been neither reviewed nor approved by the Supreme Court.  Please note that, in the interest of brevity, portions of any opinion may not have been summarized.) 

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14) (076195) 

Argued April 25, 2016 -- Decided July 6, 2016 

LaVECCHIA, J., writing for a unanimous Court. 

In this appeal, the Court considers the following question of law certified by the United States Court of Appeals for the Third Circuit:  Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) 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 action before the Third Circuit involves plaintiffs Brenda Ann and Paul Schwartz.  After Brenda was diagnosed with chronic beryllium disease, the Schwartzes filed a complaint raising claims of negligence, products liability, and strict liability against defendant Accuratus Ceramic Corporation (Accuratus), a ceramics facility where Paul had worked in 1978 and 1979.  In 1979, Paul began sharing an apartment with an Accuratus co-worker, Gregory Altemose.  At the time, Paul and Brenda were dating and Brenda frequently visited and stayed overnight at the apartment.  After the couple married in June 1980, Brenda and Paul resided in the apartment, where Altemose also continued to live.  Brenda performed laundry and other chores at the apartment, both when she stayed with Paul prior to their marriage and after she moved in as Paul’s wife.   

The complaint alleges that employees at Accuratus’s facility were exposed to beryllium, which, according to plaintiffs, may result in cancer and other diseases of the lungs and skin.  Plaintiffs allege that Brenda was subjected to take-home beryllium exposure due to Paul and Altemose bringing the substance home from Accuratus on their work clothing.  Thus, plaintiffs’ take-home-toxin theory of liability is based in part on Brenda’s exposure to beryllium for the period that she frequently stayed over at the apartment prior to her marriage to Paul.  Additionally, the take-home-toxin theory encompasses the time period after the marriage, premised on the theory that Altemose continued to bring the substance home to the shared apartment from his work at the Accuratus facility. 

Originally filed in Pennsylvania state court, plaintiffs’ case was removed to the United States District Court for the Eastern District of Pennsylvania.  Plaintiffs’ motion to remand was denied.  The federal district court concluded that “neither [New Jersey nor Pennsylvania] has 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 Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) as support for that proposition.  The court denied plaintiffs’ motion for reconsideration, commenting that to interpret Olivo as supporting a duty to Brenda would “stretch the New Jersey Supreme Court’s decision . . . beyond its tensile strength.”  After the Schwartzes filed an amended complaint, Accuratus filed a motion to dismiss, which was granted.  The federal district court concluded as a matter of law that Accuratus did not owe a duty of care to Brenda. 

Following additional motion practice, the Schwartzes filed a notice of appeal with the Third Circuit.  The Third Circuit filed a Petition for Certification of a Question of State Law, pursuant to Rule 2:12A-1, which the Court accepted.  222 N.J. 304 (2015). 

HELD:  The duty of care recognized in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) may, in proper circumstances, extend beyond a spouse of a worker exposed to a workplace toxin that is the basis for a take-home toxic-tort theory of liability.  

1. The threshold question certified by the Third Circuit -- whether the premises liability rule set forth in Olivo may extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises -- necessitates a review of Olivo and the reasoning that led to its holding.  In Olivo, the Court considered whether a landowner could be liable for injuries allegedly caused from asbestos exposure experienced by the wife of a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the landowner’s premises.  There, the Court explained “whether a duty of care can be owed to one who is injured from a dangerous condition on the premises, to which the victim is exposed off-premises, devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.”  Id. at 403.  Once foreseeability is established, a court must evaluate whether recognition of a duty accords with fairness, justness, and predictability, applying the following factors derived, in part, from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993):  (1) the relationship of the parties, namely the relationship between plaintiff and defendant; (2) the nature of the attendant risk, including the danger of the toxin at issue and how easily the toxin is transmitted and causes injury (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.  (pp. 7-9)   

2. Based on the facts presented in Olivo’s summary judgment record, the Court determined that the landowner should have foreseen that sending unprotected, soiled work clothes home on the backs of workers would result in their clothes being laundered.  That placed the person, who could be expected to perform the task of handling and laundering the unprotected work clothing, in regular and close contact with material that had become infiltrated with asbestos in the worksite.  As a result, the Court held that a duty of care to protect on-site workers from exposure to friable asbestos in the worksite extended to spouses “handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on [the workers’] contaminated clothing.”  Olivo, supra, 186 N.J. at 404-05 (emphasis added).  Applying the Hopkins factors, the Court concluded that fairness and justness would be served by extending off-premises liability in that setting.  (pp. 9-11)

3. In so holding, the Court determined that the landowner’s concerns about essentially limitless liability were unfounded because the duty recognized under the circumstances of Olivo was “focused on the particularized foreseeability of harm to plaintiff’s wife.”  Id. at 405.  That concise statement cannot be taken out of its context -- a duty was found to exist based on the foreseeability of regular and close contact with the contaminated material over an extended period of time.  Id. at 404-05.  The duty of care for take-home toxic-tort liability discussed in Olivo was not defined by the role of lawfully wedded spouse to someone who worked on the landowner’s premises.  Rather, it was foreseeable that Eleanor (plaintiff’s wife) would be handling and laundering the plaintiff’s soiled, asbestos-exposed clothes, which the landowner failed to protect at work and allowed to be taken home by workers.  That easily foreseeable, regular, and close contact with the dangerous condition produced the conclusion that the landowner could be held liable to Eleanor for her injuries.  (pp. 11-13)

4. Tort law is built on case-by-case development based on the facts presented by individual cases.  The evolution of case law must reflect the simultaneous evolution of societal values and public policy.  Olivo does not suggest that the duty recognized must remain static for all future cases -- no matter the pleadings and proofs, including unknown aspects of other toxins -- and that take-home toxic-tort liability must remain limited to a spouse handling take-home toxins.  Olivo does not state, 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.  Olivo must be recognized as a step in the development of the common law, which of necessity is built case by case on individual factual circumstances.  (pp. 13-16)

5. The Court cannot define the contours of the duty owed to others in a take-home toxic-tort action through a certified question of law.  While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings.  Although the Court cannot predict the direction in which the common law will evolve, the Court identifies certain factors that will be important as such cases present themselves.  In sum, the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse.  The assessment should take into account a weighing of the factors identified herein to determine whether the foreseeability, fairness, and predictability concerns of Hopkins should lead to the conclusion that a duty of care should be recognized under common law.  (pp. 16-19)

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 

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Toxic Lead Exposure Results in OSHA Fines for NJ Company

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