New Jersey’s High Court Makes ‘Take-Home’ Liability Virtually Limitless with ‘Case-by-Case’ Decision
In answering a certified question of law posed to it by the U.S. Court of Appeals for the Third Circuit as that federal court considers a case of “take-home” liability, New Jersey’s high court last week effectively ignored its own 2006 precedent to expand such liability into an open-ended guessing game that defendants are bound to lose.
In the current case, Schwartz v. Accuratus Corporation, the plaintiff alleges she was sickened by exposure to beryllium that clung to her boyfriend’s work clothing, which she would launder when staying overnight at his apartment from time to time, while he worked for a ceramics maker for two years. Up until now, New Jersey law only held such toxic-tort defendants liable for such a “duty of care” to a spouse residing in the same household.
But on behalf of a unanimous New Jersey Supreme Court on July 6, Justice Jaynee LaVecchia wrote:
The Court 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. Although the Court cannot predict the direction in which the common law will evolve, the Court identifies certain factors that will be important as such cases present themselves. In sum, the duty of care recognized in  may extend, in appropriate circumstances, to a plaintiff who is not a spouse. The assessment should take into account a weighing of the factors identified herein to determine whether the foreseeability, fairness, and predictability concerns . . . should lead to the conclusion that a duty of care should be recognized under common law.
If New Jersey’s high court “cannot predict the direction in which the common law will evolve,” who can? Surely plaintiffs lawyers will now do their darnedest to “evolve” the theory of take-home liability in a multitude of unpredictable directions, leaving an ever expanding universe of potential defendants wholly uncertain about their duties of care to virtually anyone their employees might come in contact with on a regular (or semi-regular) basis.
For example, what if Cliffy Clavin worked for a ceramics maker instead of the U.S. Postal Service? Would Norm Peterson be able to sue, alleging that Cliffy’s employer should have foreseen and warned him about the dangers of drinking with Cliffy after work every afternoon?
What if Cliffy came to fancy himself a real ladies man and began serial dating with help from an online matchmaking service? Would his various dates and perhaps the service itself have claims against the ceramics maker?
Or what if Cliffy’s long lost rich uncle left him a little inheritance and, hoping to spend even more time dating and drinking with Norm, he began having his work clothes laundered by professionals. Would those laundry professionals later be able to press claims against Cliffy’s employer?
It seems New Jersey’s Supreme Court justices don’t want anyone to know the answers to these questions and others like them. They don’t seem to care that businessmen and women who make decisions about where to invest, expand or relocate their operations and jobs tend to avoid jurisdictions where such uncertainty is the “Norm!”
Add recent legal attacks on arbitration agreements and a steady expansion of consumer protection law that principally benefits the plaintiffs’ bar, and the Garden State’s business environment appears increasingly choked with litigation weeds.