Thank you to my colleague, Diana Neeves, for this post. Diana is an associate in our Environmental & Utilities Practice Group.
A federal district court in Pennsylvania recently found that Accuratus Corporation (“Accuratus”), a ceramics manufacturer and supplier, could be liable under New Jersey law for chemical exposure injuries to the girlfriend and roommate of an Accuratus employee.
Ms. Schwartz dated an Accuratus employee between 1978 and 1980 and lived with this employee for some time in 1980. She allegedly suffers from chronic beryllium disease, which she believes was caused by exposure to beryllium brought home by her boyfriend.
The law governing employers’ liability for injuries caused by exposure to toxins brought home by workers varies by state and has typically been limited to liability for injuries to a worker’s spouse, a “foreseeable victim.” Although state courts have been more apt to recognize the employer’s duty to prevent take-home exposures in recent years, others continue to reject this extension of liability.
Previously under New Jersey law, take-home exposure liability was construed somewhat narrowly 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.”
In 2016, after the initial dismissal of Ms. Schwartz’s case and her subsequent appeal, the New Jersey Supreme Court reviewed whether the employer’s duty set forth in Olivo could extend beyond the employee’s spouse. The Court held that it could, 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. 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.
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. In so finding, the Court explained:
“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.”
This case serves as a reminder to manufacturers that their duty of care may extend beyond their own employees. In order to satisfy that duty of care, manufacturers undoubtedly will consider the materials used and the universe of potential exposures to those materials in developing an appropriate protocol to ensure that workers—and anyone with whom a worker may have close contact—are protected.
The case is Schwartz v. Accuratus Corporation, Civil Action No. 12-6189 (E.D. Pa., Mar. 30, 2017).