If the decisions detailed above lead one to believe that New Jersey’s high court is unwilling to set, much less stick to, bright-line rules, its 2016 decision in Schwartz v. Accuratus Corp., a take-home toxic torts case, should confirm that belief.
Ten years ago when the court addressed the issue of claims involving exposure to toxic substances allegedly brought home from work on employees’ clothes, it suggested it was setting a bright-line rule. The court dismissed concerns that expanding the law to cover take-home claims would lead to open-ended liability saying:
Although [the defendant fears] limitless exposure to liability based on a theory of foreseeability built on contact with [the plaintiff’s] asbestos-contaminated clothing, such fears are overstated. The duty we recognize in these circumstances is focused on the particularized foreseeability of harm to plaintiff’s wife.
Fast forward to 2016 when the U.S. Court of Appeals for the Third Circuit asked, in a certified question, whether a girlfriend, who would sometimes wash her boyfriend’s work clothes when she stayed overnight at his apartment, could seek compensation under the state’s existing standard.
Garden State justices might simply have said “yes.” But their mind-numbing answer instead has served to make take-home liability virtually limitless. Writing for a unanimous court (!) Justice Jaynee LaVecchia said:
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.
The court may as well have ordered the erection of two giant, flashing neon signs – one at the eastern end of the Delaware Memorial Bridge and one at the western end of the George Washington Memorial Bridge — inviting all friends, neighbors, drinking buddies, softball teammates, lovers, drycleaners and all other known acquaintances of anyone ever exposed to potentially toxic dust or fibers in a workplace to “SUE HERE!”
By refusing to set reasonable limits on take-home liability and announcing that it “cannot predict the direction in which the common law will evolve,” the high court is irresponsibly welcoming trial lawyers’ experiments. Their test subjects will be New Jersey businesses, which now have no way of knowing what sort of liability they may face, as well as deserving plaintiffs, whose recoveries will necessarily be reduced as the pie of available compensation funding is sliced into ever smaller pieces.