Take-home toxic tort liability isn’t limited to spouses, N.J. Supreme Court rules

Justice Jaynee LaVecchia, writing for the court, said the issue could not be completely addressed in a 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. Our response to the question asked by the Third Circuit will have to be limited to clarifying that the duty of care encompassed by Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse."

LaVecchia also was the author of the ruling in Olivo.

(Photo: iStock)

Olivo and Schwartz: It's in the laundry

In the Olivo case, Eleanor Olivo died after being contaminated with asbestos from years of washing her husband Anthony's asbestos-tainted clothing after he returned home daily from his job as a welder for Exxon Mobil.

The Schwartz case involves Brenda Schwartz, who suffers from chronic beryllium disease allegedly caused by contact with clothes brought home by her then-boyfriend, Paul Schwartz. Paul Schwartz, who lives in Pennsylvania, worked for the Accuratus Ceramics Corp. in Warren County, from 1978 to 1979. He shared an apartment with another Accuratus employee, Gregory Altamose.

Brenda Schwartz stayed at the apartment often and laundered the tainted clothing on a regular basis.

The lawsuit originally was filed in a Pennsylvania state court, but was removed to the U.S. District Court for the Eastern District of Pennsylvania. There, Judge C. Darnell Jones dismissed the case, ruling that no Pennsylvania or New Jersey court had extended the duty of care to non-spouse roommates. He said that expanding Olivo would "stretch the New Jersey Supreme Court decision … beyond its tensile strength."

Schwartz appealed to the Third Circuit, which asked the N.J. Supreme Court to answer its question of law. The New Jersey court did not rule on the merits of Schwartz's case.

(Photo: Shutterstock)

Issue is duty of care

"The duty of care for take-home toxic-tort liability discussed in Olivo was not defined on the basis of Eleanor's role as the lawfully wedded spouse of Anthony," LaVecchia said. "Our reasoning in Olivo was not so much that Eleanor was married to a worker at Exxon who brought asbestos-contaminated clothing home from work but that it was foreseeable that she would be handling and laundering the soiled, asbestos-exposed clothes, which Exxon failed to protect at work and allowed to be taken home by workers."

LaVecchia said case law must evolve as societal value and public policy changes.

"[T]he common law requires flexibility to grow and change when appropriate to accommodate new expectations and ideas," she said. "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."

Attorneys for both the plaintiff and the defendant found reason to praise the ruling.

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"It's an excellent opinion that expresses our interpretation of Olivo," said Schwartz's attorney, Ruben Honik. "It allows us to pursue the circumstances of our own case in the Eastern District of Pennsylvania," said Honik, of Golomb & Honik in Philadelphia.

"The court did place some restrictions and did not say that Olivo should be fully as extended as the plaintiff sought in this case," said Accuratus' attorney, Joseph Harraka Jr. of the Cherry Hill office of Becker LLC. "It's a fair compromise based on various factors that would be taken into consideration, such as foreseeability and fairness."

Michael Booth is the Trenton Bureau Chief for the New Jersey Law Journal. You can contact him at mbooth@alm.com.

Originally published in the New Jersey Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.