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Date: 07-09-2016

Case Style: Brenda Ann Schwartz v. Accuratus Corporation

Case Number: A-73-14

Judge: Jaynee LaVecchia

Court: Supreme Court of New Jersey

Plaintiff's Attorney:



Ruben Honik

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Defendant's Attorney:



Joseph G. Harraka, Jr.

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David G. Tomeo

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Wes Bridges

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Description: The issue in Olivo was “whether a landowner can 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.” Id. at 398-99. Based on the facts as
presented in Olivo’s summary judgment record and considerations
of fairness and justness, we recognized a duty owed to spouses
allegedly injured from “handling the workers’ unprotected work
clothing[,] based on the foreseeable risk of exposure from
asbestos borne home on contaminated clothing.” Id. at 404-05.
The Third Circuit now asks: “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?”
I.
The action before the Third Circuit that led to the
certified question involves plaintiffs Brenda Ann and Paul
Schwartz, who are residents of Pennsylvania. In September 2012,
a month after Brenda was diagnosed with chronic beryllium

3
disease,1 the Schwartzes filed a complaint in Pennsylvania state
court, raising claims of negligence, products liability, and
strict liability. The complaint named as a defendant Accuratus
Ceramic Corporation (Accuratus), a ceramics facility located in
Washington, Warren County, New Jersey, where Paul had worked in
1978 and 1979. The allegations against Accuratus were based on
a theory of take-home toxic-tort liability. Paul’s employment
at Accuratus preceded the couple’s marriage, but it encompassed
a period when Brenda frequently stayed at Paul’s residence,
which he shared with another Accuratus co-worker, Gregory
Altemose.
The facts to support the Schwartzes’ take-home toxic-tort
theory of liability can be summarized from the pleadings as
follows. In the spring of 1979, Paul began sharing an apartment
in Pennsylvania with Altemose. At the time, Paul and Brenda
were dating and Brenda frequently visited and stayed overnight
at the apartment with Paul. After the couple married in June
1980, Brenda and Paul resided in the apartment, where Altemose
also continued to live.2 Brenda performed laundry and other
1 According to the complaint, chronic beryllium disease is an irreversible and largely untreatable disease affecting lung tissue that is caused by exposure to airborne beryllium particles.
2 It is unclear how long Altemose lived with the Schwartzes after they were married. The pleadings are silent on the matter. The district court describes that the three lived together “for a

4
chores at the apartment, both when she stayed with Paul prior to
their marriage and after she moved in as Paul’s wife. She
laundered her and Paul’s clothing and towels, as well as the
towels used by Altemose. She also cleaned her and Paul’s parts
of the apartment and common areas.
While Brenda and Paul dated but did not yet reside together
on a full-time basis, Paul was employed as a machinist for
Accuratus at its facility in Washington. Altemose, Paul’s
apartment mate, and later Brenda’s as well, became employed at
Accuratus’s Washington facility in 1978, and his employment
continued through the date of the filing of the complaint. In
1979, prior to Paul and Brenda’s marriage, Paul became employed
by co-defendant Materion Brush, Inc., where he worked from 1979
to 1987.
Importantly, for present purposes, the complaint alleges
that employees at Accuratus’s facility were exposed to
manufacturing processes that included the production, casting,
cutting, grinding, and cleaning of beryllium oxide ceramics and
other materials containing beryllium.3 According to plaintiffs,
time”; the Third Circuit states that they lived together for “several years.”
3 Beryllium, the fourth element on the periodic table, is one of the lightest metals and has one of the highest melting points. Its properties lead to varied uses in industrial and manufacturing settings, including in ceramic applications. See

5
in industrial settings, any action that disturbs the surface
layer of beryllium will produce particles that become suspended
in the air and can be inhaled. It is further alleged that
exposure to beryllium may result in cancer and other diseases of
the lungs and skin. Plaintiffs contend that according to
scientific literature, without proper industrial hygiene
controls, beryllium dust produced by manufacturing activity can
spread throughout a facility, be deposited on the clothing and
shoes of workers, and then transported into employees’
automobiles and homes. Further, plaintiffs maintain that
studies show that, once a home environment is contaminated with
beryllium, ordinary household chores such as vacuuming and
dusting can re-suspend beryllium particles, causing persons in
the home to be repeatedly exposed to beryllium.
Plaintiffs allege that Brenda was subjected to take-home
beryllium exposure due to Paul and Altemose bringing the
substance home from Accuratus on their unprotected 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. Additionally, the take-home-toxin theory as it
pertains to defendant Accuratus encompasses the time period
Los Alamos Nat’l Lab., Periodic Table of Elements: LANL, http://periodic.lanl.gov/4.shtml (last visited June 15, 2016).

6
after Brenda and Paul’s 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. In denying the motion to return the case to state
court, the federal district court noted that the parties
disputed whether New Jersey or Pennsylvania law applied to
plaintiffs’ claims, but concluded the dispute was not a matter
of concern because “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.” The court pointed to
Olivo as support for that proposition. The court denied
plaintiffs’ motion for reconsideration, again commenting that to
interpret Olivo as supporting a duty to Brenda would “stretch
the New Jersey Supreme Court’s decision . . . beyond its tensile
strength.” The court added, concerning whether Altemose’s
employment could supply a liability link between Brenda and
Accuratus, that “it is hard to imagine where the foreseeability
link could ever be severed” if “New Jersey law [were to] find a
foreseeable duty owed by an employee . . . to another employee’s
non-spouse visitor/co-habitant.”

7
After the Schwartzes filed an amended complaint, and
subsequent motion practice eliminated certain claims,4 Accuratus
filed a motion to dismiss, which was granted. The court
declared it “unreasonable to hold Accuratus to sharp enough
foresight to realize that [Brenda] would later marry one of
their employees.” The court concluded as a matter of law that
Brenda was not owed a duty of care by Accuratus.
In April 2014, the Schwartzes sought to certify the duty
of-care question to the United States Court of Appeals for the
Third Circuit for interlocutory appeal. The motion was denied.
They then filed a motion to voluntarily dismiss all remaining
claims in order to produce a final and appealable order. That
motion was granted.
On September 24, 2014, the Schwartzes filed a notice of
appeal with the Third Circuit. On June 22, 2015, the Third
Circuit filed the instant Petition for Certification of a
Question of State Law, which we accepted. 222 N.J. 304 (2015).
The first and threshold question certified by the Third
Circuit -- whether the premises liability rule set forth in
4 In addition to bringing claims against Accuratus, plaintiffs brought claims against Materion Brush and Dennis P. Tretter, a Pennsylvania citizen who was in charge of enforcing safety policies at Accuratus’s Washington facility. Materion Brush settled with plaintiffs before the appeal to the Third Circuit. Tretter was dismissed from the action by the federal district court.

8
Olivo may extend beyond providing a duty of care to the spouse
of a person who was exposed to toxic substances while on the
landowner’s premises -- necessitates a review of Olivo and the
reasoning that led to its holding.
II.
Olivo, supra, came to the Court on a record developed on a
motion for summary judgment. 186 N.J. at 399. That record
presented the following facts. Anthony Olivo had been a pipe
welder for nearly forty years, during which he performed welding
activities as an independent contractor at Exxon Mobil’s
refinery in Paulsboro, New Jersey. Ibid. In the course of his
work, Anthony was frequently in contact with asbestos-containing
materials, including pipe covering and gaskets. Ibid. At the
end of each workday, Anthony would return home in his work
clothes and leave them in the home’s basement laundry area for
his wife, Eleanor, who laundered the work clothes “during the
evening of every workday.” Ibid. Eleanor was diagnosed with
mesothelioma in 2000, and died shortly thereafter. Ibid.
Anthony brought a wrongful death action on behalf of his wife’s
estate. Id. at 399-400.
In Olivo, we 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

9
individual or identifiable class of individuals.” Id. at 403.
In those types of cases, “[t]he risk reasonably to be perceived
defines the duty to be obeyed; it is the risk reasonably within
the range of apprehension, of injury to another person, that is
taken into account in determining the existence of a duty.”
Ibid. (quoting Clohesy v. Food Circus Supermkts., Inc., 149 N.J.
496, 503 (1997)). Once foreseeability of risk to an injured
person is established, a court also must evaluate factors that
affect whether recognition of a duty accords with fairness,
justness, and predictability. The following factors are applied
in that evaluation: (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. See id. at 403-04
(referencing, for support, Hopkins v. Fox & Lazo Realtors, 132
N.J. 426, 439 (1993)).
Applying the factors generated from the Hopkins analysis,
we said in Olivo that “the risk of injury to someone like
Eleanor Olivo is one that should have been foreseeable to Exxon
Mobil.” Id. at 404. In balancing the interests, we determined
that the record provided evidence that Exxon had knowledge of

10
the hazard caused by friable asbestos as well as the nature or
methods of exposure. See ibid. The record also disclosed the
absence of any evidence that precautions had been undertaken by
Exxon to ensure that there would not be take-home exposure from
friable asbestos, notwithstanding that precautionary steps for
employers to take were known within the industry. Ibid. We
determined that Exxon should have foreseen that sending
unprotected, soiled work clothes home on the backs of workers
would result in their clothes being laundered, and 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 at Exxon’s site. Ibid. We therefore
held that a duty of care to protect on-site workers like Anthony
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.” Id. at 404-05 (emphasis
added).
With regard to the Hopkins factors that address whether the
foreseeability of an injured party should fairly lead to the
imposition of a duty, we concluded that fairness and justness
would be served by extending off-premises liability in the
setting in Olivo. Id. at 405. The duty recognized in Olivo was

11
expressly built on easily foreseen contact with the dangerous
substance that could have been avoided by Exxon’s opportunity to
take reasonable precautionary steps. Id. at 404. The danger
from the toxin was known, and the steps to minimize the danger
and avoid injury to a class of identifiable persons off-premises
was viewed as not burdensome and in the public interest. Id. at
405.
We considered Exxon’s concerns about essentially limitless
liability to be unfounded because the holding in Olivo was
confined to the facts of the case: “[t]he duty we recognize in
these circumstances is focused on the particularized
foreseeability of harm to plaintiff’s wife.” Ibid. Even that
concise statement cannot be taken out of its context -- a duty
was found to exist in Olivo based on the foreseeability of
regular and close contact with the contaminated material (the
dangerous condition) over an extended period of time. Id. at
404-05. That assessment led to the finding of a duty that could
support Exxon’s liability to Olivo’s wife, Eleanor. Ibid. It
was foreseeable that she would handle and launder her husband’s
soiled and contaminated clothes, which were allowed by Exxon to
be taken home. Id. at 404. That reasonably predictable,
regular and close contact with a dangerous toxin produced the
conclusion that Exxon could be held liable to Eleanor for her
injuries. Id. at 405.

12
III.
The Third Circuit now asks: Does 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 the duty
does extend beyond spouses, what are the limits on that
liability rule and the associated scope of duty?
Plaintiffs argue that Olivo should not be read as
establishing a foreseeable duty only for spouses injured due to
handling a take-home toxin. Plaintiffs urge that no bright line
should be drawn from Olivo’s holding. They emphasized at oral
argument that facts such as regular cohabitation and the tasks
that a cohabiting household member is likely to perform should
weigh heavily in determining whether a foreseeable duty may
exist. They also acknowledged that the nature of the duty that
may exist is dependent on the nature of the toxin involved.
Accuratus argues against adoption of a broad legal duty
owed to all household members in take-home toxic-tort cases. It
maintains that such a rule would not justly and fairly contain
liability for derivative take-home toxic-tort actions. At oral
argument, Accuratus refined its position, acknowledging that a
marriage license is not a prerequisite for recognition of a duty
to an injured household member suing on a take-home toxic-tort
theory. Accuratus also conceded that a legal duty could
encompass members of the immediate family living together.

13
However, Accuratus contends that a legal duty should not be
recognized for other individuals who have irregular or sporadic
contact with an employee who brings home a toxic substance.
Such contact, according to Accuratus, should not be determined
as a matter of law to be reasonably foreseeable to a landowner
defendant.
IV.
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 to Anthony. 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. Id. at 404-05. That easily foreseeable, regular, and
close contact with the dangerous condition produced the
conclusion that Exxon could be held liable to Eleanor for her
injuries; the Court also concluded that it was fair to impose a
duty that could be assessed for negligence, proximate cause, and
damages. See id. at 405.
Tort law is built on case-by-case development based on the
facts presented by individual cases. In Olivo, our Court was
acting in its traditional role as a court of common law, and one

14
of the common law’s “great virtue[s]” is that it is dynamic,
adaptable, and can evolve to accommodate changes in society.
State v. Culver, 23 N.J. 495, 505, cert. denied, 354 U.S. 925,
77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957).
In our stewardship of the common law, this Court has
recognized, time and again, that the evolution of case law must
reflect the simultaneous evolution of societal values and public
policy. See Hopkins, supra, 132 N.J. at 435 (stating that
common law “cannot be immutable or inflexible”). In the
specific arena of tort liability, the common law requires
flexibility to grow and change when appropriate to accommodate
new expectations and ideas. See Kelly v. Gwinnell, 96 N.J. 538,
552 (1984) (indicating that, in tort liability, there is need
for “a continuing judicial involvement” in deciding such
matters). It was in that context that we began our discussion
of the issue in Olivo, supra, emphasizing that “[c]ourts
traditionally have been reposed with responsibility for
determining the scope of tort liability.” 186 N.J. at 401.
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. That simply was an essential fact of
the case on which we were called on to act, as a court of common

15
law, and determine whether, in the development of our common
law, a foreseeable duty could be recognized on the facts
presented. We held that it could. However, 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. The facts that go into
assessing the relationship of the parties certainly are
important. We note that no precedent from another jurisdiction,
in a non-strict liability setting, has found a duty in a take
home toxic-tort cause of action outside of a factual setting
involving household members, presumably because of the
idiosyncratic nature of most other interactions with a take-home
toxin. See, e.g., Zimko v. Am. Cyanamid, 905 So. 2d 465, 483
(La. Ct. App. 2005) (finding that American Cyanamid owed
“general duty to act reasonably in view of the foreseeable risks
of danger to household members of its employees resulting from
exposure to asbestos fibers carried home on its employee’s
clothing, person, or personal effects” and noting that “it is
hardly a quantum leap to extend the duty of care owed to
employees to members of the employee’s household who predictably

16
come into routine contact with the employee’s clothing”
(quotation marks and citation omitted)); Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 374-75 (Tenn. 2008) (finding
that defendant owed duty to employee’s minor daughter who was
exposed to take-home asbestos via father’s work clothes and
later developed mesothelioma allegedly due to that early
exposure).
That said, 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. As this Court stated in Hopkins, supra,
regarding tort liability cases, “[t]he analysis is both very
fact-specific and principled; it must lead to solutions that
properly and fairly resolve the specific case and generate
intelligible and sensible rules to govern future conduct.” 132
N.J. at 439.
Olivo, supra, addressed the paramount importance of
foreseeability. See 186 N.J. at 402-03 (explaining that duty
of-care question for take-home toxic-tort liability “devolves to
a question of foreseeability”). However, “considerations of
fairness and policy” also inform the analysis as to whether a

17
duty of care exists. Id. at 403; see Estate of Desir ex rel.
Estiverne v. Vertus, 214 N.J. 303, 326, 328-30 (2013).
We cannot predict the direction in which the common law
will evolve. Certain factors will be important as such cases
present themselves. First, case law counsels that the
relationship of the parties is, of necessity, relevant and
weighty. See Hopkins, supra, 132 N.J. at 439. That would
include an assessment not only of the relationship between a
defendant’s employee and the person who is exposed to the take
home toxin, but also the relationship between the defendant
itself and the injured person, in determining 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. To that end, idiosyncratic encounters would be
difficult to ever predict, even when occurring within the home
of the person on whom the toxin is transported. Second, the
opportunity for exposure to the dangerous substance and the
nature of the exposure that causes the risk of injury affects
the foreseeability analysis. Third, and related to the second
factor, courts must take into account the employer’s knowledge
of the dangerousness of exposure, assessed at the time when the
exposure to the individual occurred and not later, when greater
information may become available. In a non-strict-liability
negligence action, the dangerousness of the toxin, how it causes

18
injury, and the reasonable precautions to protect against a
particular toxin are relevant in identifying a foreseeable duty
by a landowner for off-premises exposure of dangerous toxins.
Although chance contact with a worker transporting home a
toxic substance from another’s premises should not suffice to
create a duty of care under the cautioning words of Vertus,
supra, 214 N.J. at 328-30, 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 based on
Olivo or any previous decision. The contours of the issue defy
definition in such manner.
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.

Outcome:

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.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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