A federal district court in Pennsylvania recently held that a ceramics manufacturer, Accuratus Corporation, could be liable under New Jersey law for chemical exposure injuries to the girlfriend and roommate of two of its employees. Schwartz v. Accuratus Corp., No. 12-6189 (E.D. Pa. Mar. 30, 2017) (Schmehl, J.).
Brenda Schwartz allegedly suffers from chronic beryllium disease, which she believes was caused by exposure to beryllium brought home by her now-husband, Paul Schwartz, and/or their former roommate, Gregory Altemose. Exposure to beryllium has been likened to exposure to asbestos in that employees who are exposed to dust, fibers, or particles containing the toxin in the workplace may thereafter carry it home on their clothing or shoes.
Between 1978 and 1980, while Brenda and Paul were dating, Paul and Gregory both worked for Accuratus, and, for some of this time, Paul and Gregory were roommates. Brenda said she spent a lot of time at Paul’s apartment while they were dating, and the three even lived together for some time in 1980 after Brenda and Paul were married. Throughout these years, Brenda often cleaned the apartment and laundered Paul and Gregory’s clothes and towels.
At Accuratus, Paul and Gregory “were [allegedly] exposed to manufacturing processes that included the production, casting, cutting, grinding, and cleaning of beryllium oxide ceramics and other materials containing beryllium.” Schwartz v. Accuratus Corp., 139 A.3d 84, 86 (N.J. 2016). Paul and/or Gregory thereafter allegedly carried beryllium home on their unprotected work clothing, repeatedly exposing Ms. Schwartz to the toxin.
Law Governing Secondhand Exposure
The law governing employers’, or landowners’, liability for injuries caused by exposure to toxins brought home by workers, also known as secondhand exposure, varies by state and typically turns on common law standards for duty and foreseeability in a negligence analysis.
Traditionally, an employer’s duty to prevent injury from unreasonable exposure to toxins has not extended beyond an employee’s spouse or child. For instance, in Chaisson v. Avondale Industries, Inc., the Louisiana Court of Appeal found that an employer owed a duty to its employee’s wife “to guard against her household exposure to asbestos from laundering her husband’s work clothes.” 947 So. 2d 171, 184 (La. Ct. App., 4th Cir. 2006). In Satterfield v. Breeding Insulation Co., the Supreme Court of Tennessee held that the plaintiff’s father’s employer owed a duty to its employee’s child “to prevent foreseeable injury from [the] unreasonable risk” of exposure to asbestos on her father’s work clothes. 266 S.W.3d 347, 374 (Tenn. 2008).
More recently, the California Supreme Court extended the employer’s duty generally to its employees’ households, concluding that “the exposure of household members to take-home asbestos is generally foreseeable.” Haver v. BNSF Railway Co., No. S219919, & Kesner v. Superior Court, No. S219534, at *9 (Cal. Dec. 1, 2016) (True, J., and Rico, J.). The court reasoned thus:
Increased risk of mesothelioma is a characteristic harm that makes the use of asbestos-containing materials unreasonably dangerous in the absence of protective measures. An employee’s return home at the end of the workday is not an unusual occurrence, but rather a baseline assumption that can be made about employees’ behavior. The risk of take-home exposure to asbestos is likely enough in the setting of modern life that a reasonably thoughtful [employer or property owner] would take account of it in guiding practical conduct in the workplace.
Id. at *15 (internal citations and quotation marks omitted).
Although some state courts have been more apt to recognize the employer’s duty to prevent take-home exposures in recent years, many continue to reject this extension of liability. Courts in New York, for instance, have repeatedly upheld the New York Court of Appeals’s decision in In re New York City Asbestos Litigation, in which the court refused to expand a landowner’s duties by imposing liability for an employee’s wife’s asbestos-related injuries. Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litigation), 5 N.Y.3d 486 (2005). The court took issue with the lack of relationship between the landowner and its employee’s wife, citing its “long-settled common-law notions of an employer’s and landowner’s duties” and noting that “the ‘specter of limitless liability’ is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by relationship.” Id. at 498.
New Jersey’s Approach
Previously, take-home exposure liability was construed somewhat narrowly under New Jersey law in light of concerns about “considerations of fairness and policy” and “limitless exposure to liability.” For instance, in Olivo v. Owens-Illinois, Inc., the New Jersey Supreme Court found that Exxon Mobil Corporation owed a duty to its employee’s spouse “based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing” and the typicality of a wife “laundering the work clothes worn by her husband.” 895 A.2d 1143, 1148–50 (N.J. 2006).
In 2016, after the initial dismissal of Brenda Schwartz’s case and her subsequent appeal, the Third Circuit certified to the New Jersey Supreme Court the following question: “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?” Schwartz, 139 A.3d at 86.
The New Jersey Supreme Court answered in the affirmative, noting that while this duty has never been extended outside the context of an employee’s household, the class of persons to which the duty may be extended need not be categorically defined. The court explained that “[a]lthough chance contact with a worker transporting home a toxic substance from another’s premises should not suffice to create a duty of care[,] . . . we cannot 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.” Id. at 92.
Instead, the court called for a case-by-case analysis that considers the relationship of the parties, the opportunity for and nature of the exposure, and the employer’s knowledge of the dangerousness of exposure. The court further emphasized the importance of foreseeability in this analysis, calling for an assessment of the relationship between the “defendant’s employee and the person who is exposed to the take-home toxin, [as well as] the relationship between the defendant itself and the injured person,” to determine “whether it would be foreseeable, predictable and just to find that the defendant owed a duty of care to that injured person or class of individuals.” Id. at 91–92. Finally, the court noted the relevance of “the dangerousness of the toxin, how it causes injury, and the reasonable precautions to protect against a particular toxin” in identifying an employer’s duty for secondhand exposure. Id. at 91.
Applying this analysis on remand, the federal district court found that the nature of beryllium as a toxin “known to travel on clothes to workers’ homes [that] can remain dangerous in the home for some time, and importantly, can cause serious damage with only minimal exposure,” taken together with the relationships of the parties in this case, was sufficient to generate a duty. Schwartz, No. 12-6189, at *8. In analyzing Brenda’s alleged exposure to the toxin, the court focused on beryllium’s potential for resuspension in the air due to the very chores in which Brenda allegedly engaged at Paul and Gregory’s apartment: laundering, vacuuming, and dusting.
Although the court did not address Accuratus’s alleged knowledge of the dangers of beryllium, it did note that “if Defendant knew just a brief exposure could cause harm, this is not a case where the law should insist upon the closest, longest, most serious relationship.” Id. at *10. Turning to the relationship between the parties, the court rejected Accuratus’s claim that Brenda’s tenure as a roommate with Paul and Gregory was too short-lived to for it to have foreseen the alleged harm. Instead, the court found that foreseeability and duty may not be “smoothly proportional to an increase in time period” and that the absence of a direct relationship between Brenda and Accuratus “does not seem to count much against duty and liability.” Id. at *9–10.
Ultimately, this relaxed standard for the parties’ relationship marks an expansion of the class of persons to which an employer may owe a duty of care:
As a simple fact of human life, an employer must reasonably foresee that virtually all of its employees live with or have repeated close contact with someone, unless there is good reason to believe that its employees are disproportionately hermits and loners. . . . [And this] reality means it may be reasonably foreseeable to a Defendant employer working with a particularly insidious toxic substance that material carried home on an employee’s clothes may harm someone at that home who is a frequent overnight guest and romantic partner or roommate sharing living space and housework.
Id. at *10–11.
This case represents an expansion of the employer’s duty for secondhand exposure beyond the traditionally defined household, departing from conventional interpretations of foreseeability and effectively opening the door to a new class of plaintiffs.
Diana E. Neeves is an associate with Robinson + Cole LLP in Stamford, Connecticut.
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