Foreseeability of Harm or Relationship Between The Parties: The Difference in Liability for Premise Owners in Take-Home Exposure Cases
Depending on the state, liability of a premise owner in a take-home toxic tort case will hinge either on foreseeability of harm or the relationship of the parties. This distinction is illustrated below in two recent take-home exposure cases, one from New Jersey and one from Arizona.
In the New Jersey case, Schwartz v. Accuratus Corp., 225 N.J. 517, 139 A.3d 84, (N.J. 2016) , the New Jersey Supreme Court unanimously ruled that the premise liability of a landowner can go beyond the spouse of an exposed person of a toxic substance on the landowner’s property. In its ruling, the court would not set a limitation as to how far the duty could extend, but stressed each case would have to be determined on its own facts.
In the Schwartz case, the plaintiffs alleged that Paul Schwartz was exposed to beryllium that he brought home causing exposure to Brenda Schwartz while they were dating and before they were married and living together. Mrs. Schwartz subsequently developed chronic beryllium disease. The case was brought in Pennsylvania state court, but was subsequently removed by defendants to federal court. The parties disputed whether Pennsylvania or New Jersey law applied, and the court stated that the disputed law did not matter as “neither state has recognized a duty of an employer to protect a worker’s non-spouse…roommate from take-home exposure to a toxic substance”(citation omitted). In dismissing the case, the federal court looked to the New Jersey case of Olivo v. Ownes-Illinois, Inc. 186 N.J.394, 895 A.2d 1143 (2006). In Olivo, a duty was found to be owed to a spouse of an individual who was exposed to asbestos brought home on her husband’s work clothing. The federal court in deciding to dismiss the Schwartzs’ case stated that to interpret Olivo as supporting a duty to Mrs. Schwartz prior to marriage would “stretch the New Jersey Supreme Court’s decision beyond its tensile strength” (citations omitted). The plaintiffs appealed to the Third Circuit, which sent a petition for Certification of a Question of State Law to the New Jersey Supreme Court.
In ruling on the question of state law, the New Jersey Supreme Court looked at Olivo and stated that that case did not limit take-home exposure beyond a spouse. However, the court went on to state “we 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” (citations omitted). In conclusion, the court held: “Our response to the question asked by the Third Circuit will have to be limited to clarifying that the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. We further instruct that 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” (citation omitted).
The Supreme Court’s ruling opened the door for liability of non-spouses in take-home exposure cases, but how far has not been determined and will be decided going forward on a case-by-case basis. The main issue will be foreseeability, which will be determined by such factors as frequency of contact the injured party had with the exposed clothing and time the injured party spent in the exposed home.
In the Arizona case, Quiroz v. ALCOA Inc.et al, 2016 Ariz. App. LEXIS 218, plaintiffs, alleged that Ernest Quiroz was exposed to asbestos from his father’s work clothes during the years he lived at his father’s home. The defendant premise owner, Reynolds, moved for summary judgment, arguing that it did not owe Quiroz a duty of care. The trial court granted the motion, finding Reynolds “had no duty to Plaintiffs as a matter of law.” The plaintiffs appealed and the case was heard by the Court of Appeals of Arizona, Division One.
In its ruling, the Appeals Court noted that in Arizona whether a defendant owes a plaintiff a duty of care does not turn on the foreseeability of injury. In determining whether a duty exists, the court does not undertake a fact-specific analysis or look at the parties actions. In Arizona, this duty may arise from (a) the relationship between the parties or, alternatively, from (b) public policy considerations. The court addressed both possible duty sources in their decision. Regarding the relationship, the court noted that plaintiffs failed to contend that Reynolds and Quiroz had either a special or categorical relationship. The court then went on to decline to address the plaintiff’s argument regarding the foreseeability of Quiroz’s injury as foreseeability is not a consideration in determining whether a duty exists under Arizona law. Regarding public policy, the court noted that a duty of care can originate in public policy arising from statues or common law. However, absent either, they typically will not find a duty based on public policy. The plaintiffs failed to cite any statutory or common law basis supporting a public policy duty. Instead, they raised other public policy factors, such as reasonable expectations of parties and societies generally and likelihood of unlimited or insurer-like liability, each of which the court declined.
Based on Quiroz’s lack relationship with Reynolds, the Appeals Court upheld the trial court’s granting of summary judgment and concluded the potential drawbacks of recognizing a duty of care in take-home exposure cases outweigh the potential benefits. The court also distinguished other out-of-state decisions. The plaintiffs relied on decisions from New Jersey (Olivo v. Owens-Illinois, Inc., Supra), Tennessee (Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008)), Louisiana (Zimko v. Am. Cyanamid, 905 So. 2d 465 (La. Ct. App. 2005)), and Washington (Rochon v. Saberhagen Holdings, Inc., 140 Wash. App. 1008, 2007 WL 2325214 (Wash. Ct. App. Aug. 13, 2007). The court distinguished these cases by the fact that they rely on foreseeability in their duty analysis
The court went on to recognize that states, such as Arizona, which focus more on the relationship between the parties, as opposed to foreseeability, have not found a duty of care in take-home cases against premise owners. These other states are New York (Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litig.), 5 N.Y.3d 486 (2005)), Delaware (Price v. E. I. DuPont De Nemours & Co., 26 A.3d 162 (Del. 2011)), Ohio (Boley v. Goodyear Tire & Rubber Co., 125 Ohio St. 3d 510 (Ohio 2010)), Texas (ALCOA, Inc. v. Behringer, 235 S.W.3d 456 (Tex. App. 2007)), Georgia (CSX Transp., Inc. v. Williams, 278 Ga. 888 (Ga. 2005)), and Michigan (Miller v. Ford Motor Co. (In re Certified Question), 479 Mich. 498 (Mich. 2007)).
Clearly, premises owners in states where the court is looking at the relationship of the parties have a greater chance of defending their take-home exposure cases. At the very beginning of a case, it would be beneficial for a premise owner to know which, foreseeability or relationship, governs their liability in order to properly prepare its defense. Those in States that rely on foreseeability may have a more difficult time defending. However, they may still have a defense in a state like New Jersey in a non-spouse take-home case, where the law is developing and is going forward on a case-by-case basis.