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By Peter Hayes
April 26 — The definition of “family” was at the heart of questioning by the New Jersey Supreme Court during oral argument April 25 in a case brought by a woman exposed to beryllium on her boyfriend's work clothes.
The court is considering whether a landowner's duty extends beyond the spouse of a person exposed to toxic substances on the landowner's premises.
“All we have to decide here is what happens in a house,” Justice Barry T. Albin said. “Is a family a non-married couple?”
There is no easy answer, defense counsel Joseph Harraka Jr. with Becker LLC in Cherry Hill, N.J., conceded.
“That's a difficult question,” he said. “There has got to be some limitation placed. There has got to be some emotional connection, and some temporal component.”
Plaintiff's counsel Ruben Honik with Golomb and Honik in Philadelphia urged the court to adopt a broad reading of its premises liability ruling in Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006).
“We're not advocating limitless liability,” Honik said. But he said it would be “troublesome” not to extend liability to Brenda Schwartz here.
“Who should be encompassed in a derivative claim as set forth in Olivo?” Justice Jaynee LaVecchia asked.
The Olivo court found that a landowner may be liable for take-home asbestos exposure to the spouse of a welder who came into contact with asbestos on the landowner's premises.
“The duty we recognize in these circumstances is focused on the particularized foreseeability of harm to plaintiff's wife, who ordinarily would perform typical household chores that would include laundering the work clothes worn by her husband,” the Olivo court said.
In this case, Brenda Schwartz lived with but was not married to her now-husband Paul at the time of exposure.
The couple brought claims of take-home exposure alleging Paul and another roommate brought home beryllium on the clothing from their workplace, Accuratus Corp.
The U.S. District Court for the Eastern District of Pennsylvania dismissed the premises liability claims against Accuratus, finding Olivo limited to the employee's spouse, in Schwartz v. Accuratus Corp., 7 F. Supp. 3d 490 (E.D. Pa. 2014.
The Schwartzes appealed to the U.S. Court of Appeals for the Third Circuit, arguing that the trial court's interpretation of Olivo was in error, in Schwartz v. Accuratus Corp., No. 14-4002 (3d Cir.).
“There is no language in the Olivo opinion that limits the holding to spouses, or suggests that the New Jersey Supreme Court intended to create a bright-line rule that an employer’s duty to prevent take- home exposure extends only to spouses,” the plaintiffs argued in their brief filed in December 2014.
Accuratus responded that the Supreme court “expressly limited the scope of its holding to spouses who launder the exposed employee's work clothes.”
The Third Circuit certified the question to the New Jersey Supreme Court in Schwartz v. Accuratus Corp., No. 076195 (N.J.).
Honik also said the court should consider the pathway of injury in determining whether Accuratus owed a duty to Mrs. Schwartz.
“There is no question, if the beryllium went up a stack and hit complete strangers, no question that there is a duty,” he said.
“Knowing something about the toxin, pathway and latency period is relevant to the duty,” he said.
Justice Albin suggested that the nature of the toxin is also relevant to liability.
“Beryllium has a very different mechanism of dispersal,” he said.
“How can we use the framework of Olivo , when we're talking about beryllium?”
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