United States: New Jersey Supreme Court Breaks New Ground and Imposes Duty to Third Parties Exposed to Asbestos-Contaminated Clothing

Breaking ranks with the highest courts of New York and Georgia, the New Jersey Supreme Court has extended the duty landowners owe workers for the foreseeable risk of asbestos exposure to the spouses of those workers as well -- based on the foreseeable risk of exposure from asbestos dust carried home on contaminated work clothing.

In Olivo, plaintiff, a long-time New Jersey steamfitter and welder, brought a wrongful death action on behalf of his wife, who died in 2001 of mesothelioma allegedly caused by inhaling asbestos dust from her husband’s work clothes, which she laundered each day. Id. at 1146. The trial court granted summary judgment for ExxonMobil (the lone nonsettling defendant), finding that it would be neither "fair [n]or just" to impose a duty on a landowner for asbestosrelated injuries sustained outside the landowner’s premises. Id. at 1147. Focusing more on foreseeability than fairness, New Jersey’s Appellate Division reversed, asserting that the risk of harm to Mrs. Olivo was foreseeable and that (citing Olivo v. Exxon Mobil Corp., 872 A.2d 814, 819-20 (N.J. Super. Ct. App. Div. 2005)).

Foreseeability of Need for Laundering Creates Duty of Care

After explaining that premises liability law in New Jersey must be applied with "flexibility" to deter conduct "that creates an unreasonable risk of injury," the Olivo court addressed itself to the principles and policies behind the foreseeability concept to conclude that ExxonMobil owed Mrs. Olivo a duty. Id. at 1148 (quotation omitted). Under New Jersey law, it said, foreseeability is "a determinant of a [defendant’s] duty of care . . . [as well] as a determinant of whether a breach of duty is a proximate cause of an ultimate injury." Id. (alterations in original; citations and quotations omitted). Once foreseeability is established,"considerations of fairness and policy" should determine whether the imposition of a duty is warranted under the particular circumstances of a case. Id. at 1148.

Finding the summary judgment evidence demonstrated that ExxonMobil was aware (by 1937) that sufficient exposure to asbestos dust was associated with asbestosis,and that since as early as 1916,"industrial hygiene texts recommended that plant owners should provide workers with the opportunity to change in and out of work clothes to avoid bringing contaminants home on their clothes,"id. at 1149,Olivo ruled "the risk of injury to someone like [Mrs. Olivo] is one that should have been foreseeable to ExxonMobil." Id. Further,"[i]t require[d] no leap of imagination" to realize that plaintiff’s soiled work clothes would have to be laundered, and that"whoever performed that task would come into contact with the asbestos that infiltrated his clothing . . . ." Id.

With foreseeability established, the Supreme Court did not dawdle long over policy considerations, and "[did] not hesitate" to impose a duty on ExxonMobil for the risk of injury to plaintiff’s spouse. Id. (emphasis added).¹ In so doing, the Supreme Court discounted -- as "overstated" -- concerns of potentially "limitless exposure to liability" built on mere contact with asbestos-contaminated clothing. Writing for a unanimous court, Justice LaVecchia reasoned that the duty was focused on the "particularized foreseeability of harm to plaintiff’s wife" given her daily laundering of plaintiff’s work clothes, and "[a]ccordingly, public policy concerns about the fairness and proportionality of the duty . . . should dissipate." Id. at 1150.

In contrast to Olivo, but under similar facts, the New York Court of Appeals, in Holdampf v. A.C. & S., Inc., refused to charge the Port Authority of New York and New Jersey with a duty of care to an asbestos worker’s wife allegedly exposed to asbestos dust from her husband’s soiled work clothes. Holdampf v. A.C. & S., Inc. (In re N.Y.C. Asbestos Litig.), 5 N.Y.3d 486, 489-90 (N.Y. 2005).

The Holdampf court determined that there was no relationship between the Port Authority and the worker’s spouse to justify the imposition of any duty. Id. at 495. Although urged by plaintiff to adopt the New Jersey Appellate Division’s reasoning in Olivo, the Court of Appeals distinguished New Jersey law, which anchors the duty of care question on foreseeability, from New York law, in which foreseeability determines merely the scope of a duty -- not whether a duty exists in the first instance. Id. at 494, 497.² In the final analysis, Holdampf expressed concern about extending the duty to a spouse, which it thought created the "specter of limitless liability" that so little troubled the Olivo court. Id. at 498.

Similarly, in CSX Transportation, Inc. v.Williams, the Supreme Court of Georgia, answering a certified question from the Eleventh Circuit, held that "Georgia negligence law does not impose any duty on an employer to a third-party, nonemployee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace." 608 S.E.2d 208, 210 (Ga. 2005). The court’s com- paratively brief analysis distinguished prior cases -- where the employer was "spreading asbestos dust among the general population, thereby creating a dangerous situation in the world beyond the workplace" -- from the instant case, where the employee carried asbestos from the workplace to his home. Id.

While the New York and Georgia high courts have traveled a more measured course, Olivo may be followed by other courts to expand premises liability far beyond the workplace.

1 ^{The case was remanded to resolve several fact issues, including whether plaintiff was an employee of an independent contractor to whom ExxonMobil would owe no duty, which in turn would preclude the imposition of a duty to plaintiff’s spouse altogether. Id. at 1151.}

2 The New York Court of Appeals further distinguished Olivo on the basis that ExxonMobil allegedly "did nothing to prevent workers from bringing asbestos-covered clothing in the family home," whereas the Port Authority provided on-premises laundry services to the worker, which he declined to use. Holdampf, 5 N.Y.3d at 497.

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